New initiatives have been aired recently in high political circles about creating two new courts to deal respectively with piracy off the Horn of Africa (stemming from Somalia), which continues to make headlines, and nuclear security issues.
Not long ago, there was a Dutch proposal that the UN should support the establishment of a tribunal to try Somali pirates, preferably located in Kenya, to work under the supervision of the UN. Russia also seems supportive of the idea. Many countries are not keen to try the pirates themselves, primarily for lack of legislation and other related issues. Case in point, in a recent operation, after successfully thwarting off a pirate attack, the Russian forces released the captured pirates. A question which needs to be asked first is whether establishing such a court is going to have any deterrent effect for people for whom piracy has become a way of life, in view of lack of other alternatives. In a previous post last year I pointed out the need for a comprehensive effort of the international community, based on finding a political solution to the crisis in Somalia, economic assistance and UN and/or African peace-keeping forces on the ground, to finally bring Somalia back on its feet and put an end to piracy.
Another idea, expressed by the Dutch Prime Minister Balkanende in the 2010 Nuclear Security Summit in Washington, is that of examining the possibility of establishing a nuclear tribunal. The US President Barack Obama said that the idea of an international nuclear court requires further study in terms of international law and other areas. Most of the parties represented in the Dutch parliament expressed doubt whether a special nuclear tribunal is necessary. The parliamentary discussion over this matter showed that indeed further study and a proper briefing of parliamentarians on this issue would be desirable.
The overarching issue underlined by these two proposals is whether there is a need to establish new international courts to face specific global or regional security threats? Indeed, enforcement mechanisms for different important international law norms relating to peace and security are lacking, even in the case of a customary international law norm such as the prohibition of piracy. But the issue of establishing new courts should be approached with restraint. Before committing to such a huge step a feasibility study needs to be prepared and options explored whether an already existing court can eventually exercise jurisdiction for that specific issue or be bestowed jurisdiction over it. The Review Conference of the International Criminal Court in Kampala, Uganda, or similar world summits offer splendid opportunities for considering such issues.
In any case, establishing new international courts, provided they are or will be deemed necessary, is not going to have the desired effects, unless that is accompanied by other necessary political and economical measures which aim at addressing the root causes for existing problems.
Thanks for the post Gentian. I agree with most of the points you make. Ever since the establishment of the ad hoc tribunals in the mid-1990s there has been a rather favorable attitude towards creating special courts, either backed by the international community or as autonomous international institutions (although the high costs of the ad hoc criminal tribunals have arguably dampened this attitude a bit). And I would argue that international courts are indeed important actors which – in some instances – are even better suited than any political bodies to solve some of the most pressing global problems. In effect the proliferation of international courts is – in my reading – a positive development as it meets the promise of international law to make a contribution to international justice. It is e.g. not a coincidence that the international judiciary (with the ICJ at its heart) plays a central role in Kelsen’s idea of the international order.
I would also agree, however, that international courts may never entirely replace political efforts (or existing international or national bodies) to deal with questions such as the non-proliferation of nuclear weapons or piracy. Here both the international community, with its existing institutions, and effective state structures are and will continue to be necessary. Especially with regard to nuclear security issues I would suggest that such questions can be solved either within the framework of the IAEA or, if a political solution cannot be reached, by bringing a case before the ICJ for alleged violations of international obligations. A new and special court is not likely to be necessary and its establishment would probably fall victim to the same concerns that proved the IAEA to be insufficient or the path to the ICJ as not passable.
For our coverage of the establishment of a “piracy court” see
On the establishment of new international courts see
Andrew Drzemczewski drew our attention to the Report by Rapporteur Mr Serhiy Holovaty for the Committee on Legal Affairs and Human Rights entitled “The necessity to take additional international legal steps to deal with sea piracy”. The report can be found here: http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc10/EDOC12194.htm
At paras 43 ff. it contains some arguments against a new international court to deal with piracy.
Well, an international court sounds like a good idea –on paper. But I kind of doubt that it will actually prove as effective as we need it to.
Thanks Dominik for bringing all that information to our attention!