by Mridul Godha*
To the layman, the International Court of Justice (“ICJ”) is the universal body for settlement of disputes. In fact, Article 92 of the United Nations Charter designates the ICJ as the principal judicial organ of the UN. However, it is clear that under international law, the ICJ does not enjoy any form of supremacy or prioritization over other international tribunals. There is no hierarchy of courts and tribunals to be found within the international law regime. This is problematic because it leads to what is widely recognized as the fragmentation of international law through the multiplicity of international courts and tribunals.
The absence of an international machinery to determine possible conflicts of jurisdiction or competence means that the applicant has a bucket of forums to approach when filing a dispute. This freedom arguably borders an ability to forum shop. As an applicant, a State is free to approach any of the tribunals to which parties have consented under different international treaties on that subject matter. The respondent State is then usually forced to raise a preliminary objection as to the jurisdiction of the tribunal approached by the applicant. What follows is a time and effort consuming process of preliminary arguments and submissions before the merits of the dispute are actually deliberated upon (or not).
Elsewhere, contracting parties to treaties have often recognized the problem of multiplicity of tribunals and tried to resolve it by building a hierarchy of tribunals within the treaty’s provisions. But this is problematic too, because multiple treaties having multiple hierarchies of tribunals would again cause the same issue if these hierarchies are dissimilar! An example of the law of sea regime can be taken to illustrate this. The UNCLOS is the constitution of the law of the seas and is a highly comprehensive, all-encompassing treaty. Framers of the UNCLOS, in Part XV of the treaty, built a well-structured hierarchy of jurisdictions to be followed by parties in case they are part of a dispute. Under the UNCLOS, parties are first encouraged to settle disputes by peaceful means chosen by them or agreed upon by them in general, regional or bilateral agreements or anywhere else. It is only once these options fail, that the parties are to invoke the compulsory binding settlement procedures of UNCLOS under which they can choose one of the four prescribed forums of settlement. All of these mechanisms look good when seen in isolation. However, that is not the case when other related treaties are brought into play.
The 1996 “London Protocol” is one such related treaty. The Protocol concerns pollution caused by placement and dumping of wastes and other matters at sea. On the other hand, the UNCLOS also covers dumping of wastes in Article 210. It is fair to say that in matters of dumping the London Protocol is the lex specialis and the UNCLOS is the legi generali. However, a difference in the hierarchy of tribunals envisaged by the framers of both of these treaties leads to a multiplicity. The London Protocol too has an implicit hierarchy of tribunals. It says that once parties fail to resolve their matters by peaceful means of their choice, they must invoke the arbitral procedure given within the Protocol. Now herein lies the problem. On the one hand, the UNCLOS asks parties to resort to its compulsory binding procedures after failing to resolve disputes by other peaceful means, on the other hand, the Protocol refers them to its arbitral procedure.
The lex specialis rule may possibly be used to resolve this dilemma and give a priority to the arbitral procedure under the London Protocol over the binding procedure of the more general UNCLOS. But difficulties continue to arise even after this step. Let us suppose that the arbitral procedure has also been exhausted by parties. Certainly, one of the parties would be dissatisfied with the outcome of the arbitration. Can we say that this party can now have recourse to the binding procedures under the UNCLOS considering that its requirement of exhausting all other agreed means between the parties has been satisfied? If yes, and the binding procedure’s outcome is partially or totally different from the arbitral procedure, which judgment will prevail? What dictum should the parties adhere to? After all, there is no such thing as an appellate international forum in this particular example and both forums are equal in the eyes of the international regime.
This is just one of the many facets of the problems that arise from the multiplicity of tribunals. There are many other issues, such as those addressed by the ITLOS Tribunal in the Southern Bluefin Tuna judgment or much recently in the South China Sea dictum. It is important for the international community to devise a solution to this problem. This blog post would not go further into the possible solutions to this dilemma as many authoritative writings have previously suggested some possible ways out of this. But one definite takeaway is that as more and more treaties are brought into force, there will be more conflicts between their jurisdictional and compromissory clauses and the problem of multiplicity will further aggravate.
[*Mridul Godha is a fourth year student at National Law University, Jodhpur. His inclination towards international law is a by-product of his love for mooting. He is Managing Editor for “Trade, Law and Development” and may be reached at firstname.lastname@example.org.]