chapter  9
No longer a moot point: towards an independent international legal tribunal?
Pages 20

Introduction Our project has sought to understand the various supports for ‘domestic rule of law’ (the rule of law in national affairs) and to look for current and possible supports for the ‘international rule of law’. The first workshop looked at ethical supports for the international rule of law. The second workshop examined institutional supports for the international rule of law. Of all the institutions seen as necessary to support the rule of law, none are seen to be as central as courts. Indeed, for Raz, law requires a ‘two stage decision process’ with the second stage being committed, as far as practicable, to apply to new fact situations on decisions that have already been made (by legislation, regulation, custom, contract or earlier court decision).1 The listing of alternative sources of law reminds us that legislatures are not essential to law – though they can, and generally do, make law more efficient, responsive and, generally, accountable. International law has a number of courts which could potentially cover any dispute arising within international law. The problem is a lack of the kind of compulsory jurisdiction that is taken for granted in domestic courts. This allows states to make agreements that they never intend to keep and to make claims, some of them preposterous, about the legality of their actions without having to test them in court. The long-term goal must be to secure that universal compulsory jurisdiction.2 However, that does not prevent action in the interim by states, groups of states or by non-government organizations (NGOs). This particular chapter takes up ideas that I first set out in a set of proposals for strengthening the rule of law in international affairs following a 2005 discussion between Professor Ramesh Thakur, and the then UN General Counsel and Under Secretary-General (USG) for Law, Dr Nicholas Michel. Ramesh asked me to set out my ideas which he sent to the USG just before we met him. The USG advised us that future proposals to his office should not include one particular element – a proposal for the establishment of an NGO tribunal that could hear matters in which only one of the relevant states accepted the compulsory jurisdiction of the International Court of Justice (ICJ). I dutifully excluded this element of the proposal in future drafts. However, I still believe that an ‘NGO

tribunal’ could play a critical role, though I would call it an ‘Independent International Law Tribunal’ or IILT. This emphasizes its independence from states and international organizations – something that can be a strength or a weakness, but is largely a strength for a complementary organization. In this chapter, I will argue the following.