KDEC 9760 - International Courts and Tribunals in Global Governance

Standing international courts and tribunals are a relative novelty in international relations, and yet for many observers today they represent an indispensable feature of the contemporary system of global governance. Both institutionally and symbolically they have come to embody the very idea of the international rule of law and the concepts of international justice and impartial dispute settlement. Yet, according to the established principles of international law, all international judicial institutions, from the International Court of Justice to international investment tribunals and human rights courts, function on the basis of state consent. The element of politics which this brings into the workings of international adjudication is both unavoidable and, in a certain sense, uncontrollable. Most international disputes, especially those involving particularly sensitive political questions, never reach international courts or do so only in an extremely truncated fashion. For a long time, it has been the standard position of the international advocates of the rule of law that this tendency needs to be counteracted, and that the best way to achieve this goal is to institute some form of automatic jurisdiction or some other similar mechanism allowing the international justice system to bypass the limitations imposed on it by the logic of national sovereignty. Yet, as recent events show, change may be under way. As the latest developments in international investment practice and in the World Trade Organization demonstrate, many of the traditional assumptions concerning the role and place of international courts and tribunals are increasingly coming under attack. Powerful campaigns of resistance against the rise of global ‘juristocracy' are gathering steam across various policy-making and academic domains. With arguments coming from both the left and the right, one thing seems to be clear: when it comes to the question of international adjudication, the status quo of the last few years is not going to last very much longer. It is against this background that the present course takes up the subject of international courts and tribunals. Our aim in this course is to explore the place and role of international judicial institutions both as a mechanism and as a site of contemporary global governance, by tracing their common features, their relative strengths and weaknesses, their impact on the different areas of international relations, as well as the broader systemic issues surrounding the subjects of international adjudication and the juridification of international relations. Our primary focus will be on the study of inter-state dispute settlement structures. However, the role of mixed and hybrid judicial institutions, such as investment tribunals and human rights courts, will also be given considerable attention. Over the course of 12 seminars, students will be introduced to a variety of existing international judicial institutions, their principal institutional and procedural traits, as well as a series of cross-cutting themes that traverse the contemporary practice of international adjudication, such as the question of judicial law-making, the issue of de facto constitutionalization, and the broader risks and promises of greater and lesser judicialisation of global governance.

Christian J. TAMS,Daniel MÜLLER,Jean D'ASPREMONT

Séminaire

English

The list of reading assignments will be specified in advance of each seminar. Students are required to prepare all required reading assignments. With a view to successful completion, they are also encouraged to acquaint themselves with the recommended readings. Excluding, where applicable, the relevant treaties, statutes, and normative materials, the amount of required reading will not exceed 100 pages per seminar. Active participation in class discussions is expected and forms part of the course assessment.

A general knowledge and awareness of current affairs relating to the course's main theme is encouraged, though not compulsory.

Spring 2021-2022

The final mark will be a composition of: - seminar participation mark (25%) - a short mid-term paper (a take-home essay) (25%) - an end-of-term final paper (a take-home essay) (50%) Students will write an essay (4000 words excluding footnotes) on a topic of their choice. The topic must relate to one of the specific or cross-cutting questions discussed in the course and must be preliminarily approved by the lecturer.

The course will be delivered in a seminar format. All seminars will be interactive and will involve a significant element of group work and class discussions addressing questions raised by the instructor.