The Authority of International Courts and Tribunals: Challenges and Prospects

2016 BIIJ Brandeis Institute for International Judges The Authority of International Courts and Tribunals: Challenges and Prospects The International Center for Ethics, Justice and Public Life of Brandeis University in partnership with iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts, University of Copenhagen, Faculty of Law The Brandeis Institute for International Judges (BIIJ) 2016 was convened by Leigh Swigart and Daniel Terris of Brandeis University, in partnership with Mikael Rask Madsen and Henrik Stampe Lund of iCourts, Faculty of Law, University of Copenhagen. BIIJ 2016 was co-directed by Richard Goldstone and David Thór Björgvinsson. The BIIJ Program Committee, composed of Judges Dennis Byron, Vagn Joensen, Fatsah Ouguergouz, and Christine Van den Wyngaert, provided critical guidance during the development of the Institute program. This report was prepared by Leigh Swigart. Many thanks go to our rapporteurs, Kerstin Bree Carlson and Harry James Rose, for their careful documentation of the discussions. We also thank our participants for providing comments on earlier drafts of this report. We are grateful to the conference planning staff of the University of Copenhagen, Faculty of Law, particularly Maria Lotz whose efficiency and patience were much appreciated. The 2016 Brandeis Institute for International Judges was supported by the Rice Family Foundation, the Louis D. Brandeis Legacy Fund for Social Justice and the Danish National Research Foundation. This report of the Brandeis Institute for International Judges 2016 is online at brandeis.edu/ethics/pdfs/internationaljustice/biij/BIIJ2016.pdf Table of Contents n Foreword 4 n About the Institute 6 n BIIJ 2016 Participants 7 n Plenary Discussions 9 1. The Authority of International Courts and Tribunals: Definitions 9 and Dilemmas 2. The Authority of International Courts and Tribunals: Challenges 12 and Strategies 3. The Role of International Judges in Building a Coherent International 15 Legal Order 4. Internal Aspects of the Functioning of International Courts 17 and Tribunals 5. Evaluating the Performance of International Courts and Tribunals 21 n Contributions by iCourts and Brandeis University to the Study 26 of International Courts and Tribunals 1. The iCourts Research Agenda and Presentation of Findings by Two 26 Affiliated Researchers 1.1 Research on the Court of Justice of the European Union 26 1.2 Research on the European Human Rights System 27 1.3 What are potential benefits of academic research for members 28 of the international judiciary? 2. The Ad Hoc Tribunals Oral History Project 30 n Participant Biographies 33 Foreword The proliferation capture features of the status and activity of a over recent decades judicial body – from merely formal and factual of international legal implications to the reliability and moral courts and tribunals performance of an institution that must be with various authoritative so as to inspire trust and respect jurisdictions and in society. The purpose was to capture all or as structures, as many as possible of these relevant features, and well as of judicial this report of the Institute abundantly shows institutions with how this goal was achieved. international participation, Where does the authority of international courts Fausto Pocar, International Criminal Tribunal for the inevitably begs the and tribunals lie? The capacity to carry out their former Yugoslavia following questions: mandate under their respective statutes, and What is the nature the degree of compliance with their decisions, of their authority? are certainly useful indicators, but they do And what should be their role in the shaping not exhaust the question. The impact of their of a coherent international legal order? As some judicial activity on States and the communities of these courts and tribunals have recently of individuals within their jurisdictions, as well reached the end of their mandates or are about as the acceptance of their decisions, are even to close their doors, it is time for an assessment more significant indicators. Ultimately, the of their performance. In this context, the quality of their jurisprudence, and the degree Copenhagen session of the Brandeis Institute for of their public reliability as an independent International Judges (BIIJ), held in July 2016, expression of justice, appear to be decisive proved a timely and challenging event. Judges factors in assessing the authority of international from different courts and tribunals, along with courts. In this perspective, are international academics from the Danish research project courts and tribunals under an obligation to on international courts (“iCourts”) of the local discharge their function by contributing to university, gathered to discuss the authority of the formation of a coherent international legal the international judiciary in a very stimulating order? Fragmentation and differences of views and beneficial partnership. are unavoidable, but inter-judicial dialogue can remove inconsistencies and contribute The debate, initially introduced by an article of authoritatively to the evolution of international the iCourts director, was passionate, rigorous customary law as a common legal denominator and comprehensive while at the same time in international relations, thus removing varied, as suggested by the term “authority.” incoherence on basic legal principles. In referring in general to the “authority” of international courts and tribunals, the theme of The debate remains open on most of the issues the Institute was clearly not a univocal one. As raised during the Institute, but the discussions reflected in any dictionary, the word “authority” were intense and rewarding. They also frequently has different meanings, and each of them may built upon conversations from previous sessions 4 ■ Brandeis Institute for International Judges 2016 regarding ethical aspects of the international judicial function. I have personally had the opportunity to participate in each BIIJ since the program’s inception in 2002 – as a participant, session leader, and member of the Program Committee – and thus have been witness to its progressive development. After fifteen years, the initiative taken by the International Center for Ethics, Justice and Public Life of Brandeis University should be regarded as an invaluable and irreplaceable forum for addressing fundamental ethical as well as practical questions which are central to the action and performance of the international judiciary. Fausto Pocar Appeals Judge and former President, International Criminal Tribunal for the former Yugoslavia Brandeis Institute for International Judges 2016 ■ 5 About the Institute udges serving on the benches of twelve The Institute’s theme, “The Authority of international courts and tribunals met International Courts and Tribunals: Challenges Jin Copenhagen from 27 to 30 June and Prospects,” took its inspiration in part from 2016 for the eleventh session of the Brandeis research currently being conducted by iCourts Institute for International Judges (BIIJ). This scholars. The aim of the institute was to explore small and confidential event, unique in the the nature of the authority of international world of international justice, was carried out courts and tribunals, the various challenges as an institutional partnership between the this authority may face in different types of International Center for Ethics, Justice and jurisdictions, and the ways in which judicial Public Life of Brandeis University, and iCourts, institutions might enhance their authority in the Danish National Research Foundation’s the eyes of constituents, parties and the broader Centre of Excellence for International Courts at public. the University of Copenhagen, Faculty of Law. 2016 International Judges and Co-Directors Front row (left to right): András Sajó, Silvia Fernández de Gurmendi, Fatsah Ouguergouz, Solomy Bossa, Richard Goldstone, Christine Van den Wyngaert, Fausto Pocar, Ujal Bhatia Back row (left to right): David Baragwanath, Emmanuel Ugirashebuja, Olivier Beauvallet, Tómas Heidar, Vagn Joensen, Dennis Byron, David Thór Björgvinsson 6 ■ Brandeis Institute for International Judges 2016 Session topics included: the authority of BIIJ 2016 Participants international courts: definitions and dilemmas; challenges and strategies related to the International Judges authority of judicial institutions; the role of international judges in building a coherent African Court of Human and Peoples’ Rights international legal order; the internal aspects • Solomy Bossa (Uganda) of the functioning of international courts; and • Fatsah Ouguergouz (Algeria/France), Program evaluating the performance of international Committee member courts. Participants were also introduced to the iCourts research agenda by Director Mikael Caribbean Court of Justice Rask Madsen and heard from two scholars • President Sir Dennis Byron (St. Kitts & Nevis), about their findings. This was followed by a Program Committee member stimulating discussion between scholars and judges about how research on international East African Court of Justice courts and tribunals can be relevant to judicial • Emmanuel Ugirashebuja (Rwanda) practice. European Court of Human Rights Brandeis Ethics Center Director Daniel Terris • Vice-President András Sajó (Hungary) and Director of Programs in International Justice and Society Leigh Swigart also had the Extraordinary Chambers in the Courts of opportunity to present the Center’s Ad Hoc

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