The Public Interest Perspective of International Courts and Tribunals

The proliferation of international courts and tribunals since the early 1990s has sparked debates about their overlapping interests and jurisdiction, the need for some consistency, the scarcity of available financing, as well as their precise role and function in alleviating justice and other concerns of interest to the international community. It should not, however, be forgotten that international courts and tribunals are living organisms whose stakeholders may not always share common core beliefs or expectations, which in time give rise to tensions that are not susceptible to remedial action. By way of illustration, in the creation of the International Criminal Tribunal for Rwanda (ICTR), the post-genocide Rwandan government broke ranks with the United Nations (UN) and the Security Council (UNSC) because of its desire to control a large part of the processes of the tribunal.

Similarly, the initial case law of what is now known as the Court of Justice of the European Union (CJEU) evinces its judges’ struggle to break away from the shackles of the narrow meaning ascribed to the European Court (EC) treaties by their founding members. The European Court of Justice, as was known then, could well have been disbanded by its creators in the aftermath of the Van Gend en Loos case; yet not only did it survive, but it also went on to flourish. Some tribunals are
not so lucky as the tug-of-war between the judiciary and the tribunal’s creators can lead to its demise. This is amply demonstrated by the elimination of the Southern African Development Court (SADC). In between international judicial institutions that contest the authority of their creators—which go on to thrive—and those whose struggle culminates in their demise, one also finds a plethora of courts and tribunals that lead an uneventful existence. Some are hugely successful and generate a significant caseload, such as the International Court of Justice (ICJ), the Permanent Court of Arbitration (PCA), as well as the vast majority of international commercial arbitral entities, such as the International Chamber of Commerce (ICC) or the London Court of International Commercial Arbitration (LCIA). Others are ambitious, but their caseload does not seemingly justify the tremendous costs associated with their operation. Some of the new generations of hybrid dispute resolution fora (HBRD), which operate in special economic or financial zones, such as the Astana International Financial Centre (AIFC) Court,5 fall within this sphere of criticism.