Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
New international courts and tribunals: help or hindrance in a globalising world? International Institute of Public Ethics 2002 Biennial Conference, Sheraton Brisbane Hotel and Towers, Brisbane.



Download PDFDownload PDF

Attorney-General The Hon Daryl Williams AM QC

October 2002

International Institute of Public Ethics 2002 Biennial Conference New International Courts and Tribunals: Help or Hindrance in a Globalising World? Sheraton Brisbane Hotel and Towers, Brisbane 9.00am, Friday 4 October, 2002

Introduction

The challenges of globalisation are well documented. Access to information and instantaneous communication from one side of the globe to the other are now a fact of life.

Governments, business and the professions now look for and analyse linkages between issues that were once considered in isolation. States can no longer look only within their borders. Issues such as transnational crime, people smuggling and e-commerce require a sophisticated policy approach. In an increasingly globalised world, we need global solutions.

International institutions have a significant and positive role to play in maintaining order on an international level and in addressing the challenges of globalisation. I would like to explore the nature of that role with you.

Background to International Courts and Tribunals

International courts and tribunals are not new.

In 1899, the Permanent Court of Arbitration was established by the Hague Conference, which adopted the Convention for the Pacific Settlement of International Disputes.[1] In 1922, the Permanent Court of International Justice was established. This was replaced by the International Court of Justice in 1946. The ICJ continues to operate today and it is the principal judicial organ of the United Nations.

The primary role of international courts and tribunals is to adjudicate disputes between States.[2] While the decisions of these courts have been closely analysed by international lawyers, they have not usually featured prominently in broader public debate.

One reason for this is that international courts generally hear far fewer cases than domestic courts. In the world of State to State disputes, judicial settlement of disputes is a last resort. Indeed, since 1946 the International Court of Justice has only heard around 80 cases.[3]

In recent times, however, international courts and tribunals have received far more public attention. In part, this can be attributed to the increasing number of international courts and tribunals.

Another more fundamental element of the increased debate on the role of international courts and tribunals is the more general issue of maintaining State sovereignty in a globalised world. This is an issue that has been the subject of significant consideration and debate within the Government.

I want to focus on three key areas. First, the influence and operation of the International Criminal Court. Secondly, the influence and operation of some of the other international courts and tribunals, such as the International Tribunal for the Law

of the Sea. And finally, the role of United Nations human rights treaty bodies.

International Criminal Court

The Government's decision to ratify the International Criminal Court Statute was the subject of significant debate in Parliament and in the broader community.

ICC and Sovereignty

The ICC Statute was considered by the Federal Parliament's Joint Standing Committee on Treaties, which received more than 250 submissions and held public hearings around the country. To promote a full and informed public debate, the Government released exposure drafts of the Bills needed to implement the ICC Statute.

Australian sovereignty was a constant and recurring theme in submissions to the committee and in public debate. The ICC was seen by many as a threat to Australian sovereignty.

The ICC Statute itself provided a clear answer to arguments on the sovereignty point. This answer was the principle of complementarity, the cornerstone of the ICC. This principle establishes the primary obligation of States to prosecute and punish perpetrators of ICC crimes. The ICC will only be able to prosecute such perpetrators if States are unwilling or unable genuinely to do so.

After close examination of the issues involved, the Joint Standing Committee on Treaties recommended ratification of the ICC Statute. It recommended an annual report to Parliament on the ICC. And it recommended that the Criminal Code should mirror ICC crimes to ensure Australia will always be able to prosecute a person accused of a crime under the ICC Statute.

While the Howard Government fully supports the court, we understand the concerns of some members of the community about its impact on Australian sovereignty. In addition to the general protection provided by the ICC's key principle of complementarity, we have taken specific steps to protect Australian sovereignty.

Our ratification document was accompanied by a declaration that indicated how Australia would give practical effect to the Statute while fully adhering to our obligations. This declaration reaffirmed the primacy of Australian law and the Australian legal system.

Legislation implementing the ICC Statute included further protections.

In particular, the Attorney-General's consent is required to surrender Australian citizens to the ICC.

As a result, Australia's national sovereignty has been preserved beyond doubt. At the same time, a new and significant international court has been established.

The ICC will provide a permanent standing court to bring war criminals to justice where individual countries fail to do so. It will address the most heinous of crimes and help to provide a more stable world community, where gross criminal conduct is not tolerated.

The ICC will also assist the Australian Defence Force. Australia is currently the tenth largest troop contributor to the United Nations. Our troops often serve in places like East Timor or Somalia, where the legal system is virtually non-existent. The ICC will provide our soldiers with the certainty and stability they need to fulfil their duties properly and without fear of victimisation.

The ongoing challenge for the ICC will be to ensure that it maintains its transparency, integrity and non-political nature.

I was pleased to note the UN Secretary-General's recent comments on the role of the ICC. He said that the ICC

'...is not - and never must become - an organ for political witch hunts. Rather it must serve as a bastion against tyranny and lawlessness and as a building block in the global architecture of collective security'.

From the Government's point of view, this is a role we would certainly be pleased to see the ICC assume.

Other International Criminal Tribunals

It is important to recognise the significance of the forerunners of the ICC, the International Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. They paved the way for a permanent international criminal court, demonstrating that international tribunals are a useful and legitimate method of dealing with serious international crimes. And they focused the attention of the international community on the atrocities that were committed in Yugoslavia and Rwanda.

Debate continues over the need for some international mechanism for dealing with alleged atrocities in East Timor. Clearly there are still challenges for States and the broader international community to address in order to promote and maintain the international rule of law.

The International Tribunal for the Law of the Sea

Another body with a significant role in the development of international law is the International Tribunal for the Law of the Sea, or ITLOS as it is commonly called. This tribunal was set up under the 1982 United Nations Convention on the Law of the Sea.

Australia is a party to the Convention, which entered into force in 1994. ITLOS was established in August 1996.

It has jurisdiction over disputes arising out of the interpretation and application of the Law of the Sea Convention.[4]

This convention sets out detailed rules for the settlement of disputes. States are obliged to settle their disputes using peaceful means. If this is not successful, the compulsory dispute settlement provisions of the convention apply. Under those provisions, States may make a declaration choosing the means by which disputes concerning them will be settled. Around 30 States have made such declarations.

Australia made a declaration in March this year, nominating the International Court of Justice and the International Tribunal for the Law of the Sea as its preferred means of dispute settlement under the Law of the Sea Convention.

The Convention also allows States to exclude certain specified forms of dispute from compulsory dispute settlement. Australia has excluded maritime boundary disputes as we believe these are best resolved through negotiation rather than litigation. Eleven other States have made similar exclusions for maritime boundary disputes.

The Southern Bluefin Tuna case - ITLOS provisional measures

The Southern Bluefin Tuna litigation was only the third case to come before ITLOS. Australia and New Zealand sought provisional measures that Japan immediately cease unilateral experimental fishing for Southern Bluefin Tuna and that Japan restrict its catch to its national allocation as last agreed by the Commission for the Conservation of Southern Bluefin Tuna. I led the Australian legal team and appeared before the tribunal.

We faced a number of challenges during the preparation of our case and at the hearing. Many of these were simply due to it being the third case the tribunal had heard. It was not like appearing before the High Court of Australia, with a hundred years of history and experience to draw from.

This was demonstrated by one particular incident that I recall. This case involved a significant amount of expert scientific evidence relating to the state of the fish stocks. The lawyers for Japan wanted to challenge the expertise and credibility of one of our scientific witnesses and suggested the tribunal should deal with this challenge on a voire dire - a hearing within a hearing.

While this concept is familiar in the common law world, it was a novelty in international litigation between States. It certainly was not covered in the tribunal's rules of procedure. Despite our objections, the voire dire proceeded. However, Japan was not successful in warding off provisional measures. The credibility and expertise of our scientific witness was accepted and as a result their evidence was brought before the Tribunal.

Australia and New Zealand were successful and ITLOS ordered provisional measures, which are binding under international law. However, granting provisional measures, the international law version of an injunction, was only the first step in the proceedings.

Southern Bluefin Tuna - Annex VII Arbitration

In 1999, when the proceedings commenced, Australia had not made a declaration under the Law of the Sea Convention nominating its preferred forum for compulsory dispute settlement. Japan had not done so either.

In this situation, the default tribunal is an Annex VII tribunal under the Law of the Sea Convention. An Annex VII tribunal is not a standing body like ITLOS. It needs to be set up as a one-off tribunal by the parties to the dispute. However, where a dispute to

be heard by an Annex VII tribunal also includes a request for provisional measures, these will be heard by ITLOS pending the establishment of the Annex VII tribunal.

So, once ITLOS had granted provisional measures, Australia, New Zealand and Japan had to set up an Annex VII tribunal to adjudicate on the substance of the dispute. The Law of the Sea Convention provides little guidance on how the practicalities of this are to be done, other than by suggesting it should be by agreement between the parties.

When States are in the midst of litigation over such a significant issue, agreeing on even simple procedural things can be a challenge. For example, we had to agree not only on who the arbitrators would be, we also had to agree how we would actually select them in the first place. We had to decide how much to pay them. And we had to decide where the hearing should take place. The parties had expressed a view that it should take place in a 'neutral' State. We finally agreed on Washington DC.

We had to agree on rules of procedure that would apply to the hearings and whether an institution should act as the registry or secretariat for the dispute. That job went to the International Centre for the Settlement of Investment Disputes at the World Bank.

There was even the issue of whether the proceedings should be video taped. In my view, this list demonstrates some of the particular challenges that arise when States are faced with a one-off tribunal determining a dispute.

We did get the Annex VII tribunal up and running. And it went on to adjudicate the issue of whether it had jurisdiction to actually hear the dispute. It held that it did not. So, in terms of international courts, that was the end of the line for Australia and New Zealand on Southern Bluefin Tuna. Nevertheless, the ITLOS provisional measures decision was an important step in bringing about a resolution of the dispute.

Southern Bluefin Tuna - Jurisdiction Conflicts

This case is an example of one of the challenges that arises as a result of States having a choice of forum for dispute settlement. Two conventions were relevant in this dispute, the UN Law of the Sea Convention and the Convention for the Conservation of Southern Bluefin Tuna.

A key issue in dispute was which convention applied to the dispute. The Law of the Sea Convention provided general obligations that applied to all fisheries. The Tuna Convention provided obligations specific to the Southern Bluefin tuna fishery. They both had different dispute settlement clauses. The Law of the Sea Convention

provided for compulsory third party dispute settlement, the Tuna Convention did not. In broad terms, the Annex VII tribunal decided that there was no jurisdiction under the Law of the Sea Convention and that the Tuna Convention applied.

The decision has interesting implications. There is no distinct set of rules which tells States which conventions may apply to a dispute, or which court may have jurisdiction over a dispute, in cases where a State has a choice of forum or a choice of

dispute settlement processes. The proliferation of international courts and tribunals may lead to these circumstances arising again in the future. I would hope that, as they hear more cases, the relationships between tribunals will become clearer.

World Trade Organisation

In light of today's deliberations, it would be remiss of me not to mention the World Trade Organisation's dispute settlement system.

The WTO dispute settlement system is developing a sophisticated body of jurisprudence to deal with the complexities of international trade disputes. At the same time, there is significant debate about whether the WTO dispute settlement system is limited to adjudicating on trade disputes and trade disputes alone.

Trade disputes can also touch on other issues. In turn, this may mean there are choices for States in deciding which forum should hear a dispute. As I noted in relation to the Southern Bluefin Tuna arbitration, it will be interesting to watch the relationships develop between different international courts and tribunals as they hear more cases.

The WTO in general has also been the subject of significant international debate in terms of the broader questions of institutional legitimacy and loss of State sovereignty. Non-government organisations in particular have sought to challenge the

WTO for its perceived lack of transparency. It is clear that international institutions cannot simply rest on the mandates they are given by States. They must ensure transparency in their work to provide for their continued legitimacy.

United Nations Human Rights Treaty Bodies

This brings me to the third key issue I want to address, the role of United Nations human rights treaty bodies. The United Nations human rights system is a creature of the globalised world, arising as it did from the post-World War Two acknowledgment that human rights violations that occurred within a State would, if left unchecked, eventually impact on other States.

One of the major achievements of the UN human rights system has been the development of human rights treaties, which set out basic rights and freedoms belonging to all people. A committee has been established in relation to each of the six major international human rights treaties, to monitor the implementation of treaty obligations by States through a periodic reporting mechanism. In addition, four of the six treaties provide for an optional complaint mechanism for individuals who believe their rights under the treaty have been breached.

The UN Human Rights treaty bodies are not international courts. Their decisions are not binding under international law. However, they play a role in the protection of human rights and the development of international human rights law.

The Australian Government has always been a strong supporter of the human rights treaty body system. We remain committed to ensuring that the system provides effective protection from human rights violations wherever they occur. However, we believe the current arrangements are not working as well as they could.

Growth in the UN Human Rights System

The United Nations human rights system has undergone rapid expansion since the General Assembly adopted the Universal Declaration of Human Rights on 10 December 1948. In the 1990s alone the number of ratifications of human rights treaties grew by 75 per cent.

This commitment to the human rights treaties has created a huge workload for the treaty monitoring bodies, which must consider the reports of States on the steps they have taken to implement treaty obligations.

In addition to the six 'major' human rights treaties, there is a multitude of other conventions, protocols, declarations and statements of principles. There is also an increasing range of mechanisms for monitoring compliance with human rights obligations.

This proliferation of instruments and mechanisms is placing enormous demands on States. And it is clearly placing enormous demands on the bodies with responsibility for overseeing the system, which are already stretched to the limit.

One result has been huge delays, which undermine the effectiveness of the system for protection of human rights.

It may seem that the issues facing the treaty bodies could be resolved simply by providing them with more resources. And Australia has consistently called for the treaty bodies to receive a greater allocation from the United Nations budget.

However, it would be naive to believe that money alone will address the problems with the system. The Government has previously noted its concerns with other aspects of the UN human rights system that are unrelated to resources. We are concerned that certain treaty bodies and members have not worked within their mandate. We are also concerned about the level of duplication between treaty bodies themselves and between treaty bodies and other mechanisms.

The Government believes that a real and genuine commitment to reform is needed to ensure that the UN human rights system operates effectively. The concerns of States such as Australia are on the public record. And the United Nations and the Committees themselves have recognised that real and structural changes need to occur.

Australia is particularly supportive of reforms to streamline and harmonise the treaty bodies' reporting requirements. We want to encourage the production of shorter and more focussed reports. And we are keen to facilitate the better co-ordination and sharing of information between the treaty bodies. We are also keen to see more considered comments by committee members on the implementation of treaty obligations, as these play an important role in the development of jurisprudence in this area. Reforms such as these will allow the committees to maximise their effectiveness and concentrate their efforts where they are needed most.

However, meaningful change will only happen if it is backed up by a commitment at the highest political levels. Australia has resolved to secure this commitment to change.

In conjunction with Canada and New Zealand and Norway, we have made statements relating to treaty body reform in the General Assembly. And we have co-sponsored a number of resolutions on the matter in the Commission on Human Rights.

These resolutions have called for more resources for treaty bodies. And we have argued that these resources must come from the regular UN budget. The resolutions have encouraged ongoing efforts to identify measures to better implement the human rights instruments. Australia will use its re-election to the Commission on Human Rights to continue these efforts.

Conclusion

While the UN human rights treaty bodies are not international courts, many of the challenges they face and the issues they raise for States are similar to those raised by the proliferation of new international courts and tribunals.

Critics of the proliferation of tribunals say it leads to duplication, waste of resources and conflict of jurisdiction between courts, without any clear means of resolving that conflict. A multiplicity of tribunals can mean different interpretations of international

law that may ultimately undermine international law and its role in dispute settlement. Further, it can simply encourage forum shopping by States looking for the best outcome.

Supporters of the growth in international courts say there are now more avenues for States to solve their disputes and more disputes are likely to be resolved. Many of the new tribunals are specialist, not generalist tribunals.

As such, they only encourage the development of international law and provide appropriate solutions to disputes.

The complex problems thrown up by globalisation require complex solutions. Whether it be in international criminal law, the law of the sea, international trade law or human rights, international institutions have a significant role to play. New institutions, and international courts and tribunals in particular, will always face challenges. They may not always get it right. Achieving balance between meeting international interests and sovereignty concerns will remain a delicate issue. As long as States participate in the international arena, they will have to account for and explain their actions to domestic audiences.

I will continue to monitor the work of the new international courts and tribunals with interest. For now, my assessment is that they are clearly a help not a hindrance to both States and the broader international community in addressing the challenges of globalisation.

[1] This Convention was replaced by the 1907 Hague Convention for the Pacific Settlement of International Disputes. Australia is a party to both Conventions.

[2] In addition to adjudicating disputes between States, the International Court of Justice also issues Advisory Opinions.

[3] The ICJ has also issued over 20 Advisory Opinions.

[4] Other agreements may also provide that ITLOS has jurisdiction over disputes arising from those agreements.