The manual on international courts and tribunals [2 ed.] 0199545278, 9780199545278

Citation preview

MANUAL ON INTERNATIONAL COURTS AND TRIBUNALS Authors RuTH MACKENZIE

Senior Lecturer in International Law, University ofWestminster, London CESARE P.R. ROMANO

Professor ofLaw, Loyola Law School, Los Angeles YuvAL SttANY

H ersch Lauterpacht Chair in Public I nternational Law, H ebrew University, Jerusalem With PHILIPPE SANDS

Professor ofLaw and Director ofthe Centre on International Courts and Tribunals, Faculty ofLaws, University College London

OXFORD UNIVE RSITY PRESS

OXFORD UNIVERSITY PRESS

G rear C larendon Street, Oxford OX2 6DP Oxford U niversity Press is a d epartment of the U niversity of Oxford. It fu rthers the Univers ity's objective ofexcellence in resea rch, scho lars h ip, and educa tion by publishing wo rldw ide in Oxford New York Auckland Cape Town D ar es Salaa m H ong Kong Karach i Kua la Lumpur Madrid Melb ourne Mexico C ity Na irobi New Del hi Shanghai Ta ipei To ronto \V irh o ffi ces in Argen tina Austria Brazil C hi le Czech Republic France Greece Guatemala Hungary Ita ly Japa n Po land Po rtugal Singapore So uth Korea Switzerla nd Thail and Turkey Ukra ine Vietn am Oxford is a registered trade mark o f Oxford U n ivers ity Press in t h e UK and in certai n other c o untries

Published in the United States

by Oxford Univers ity Press Inc., New York © Ruth Mackenzie, Cesare Romano, Yu val Shany, and Ph ilippe Sands, 20 I 0 The m o ral rights of t he autho r have been asserted Database righ t Oxford U n ivers ity Press (ma ker) Crown copy right materia l is reproduced u nd er Class Licence

Number CO i POOOO l 48 with the p ermission ofOPS I and th e Queen 's Printer for Scotland

First pub lished 20 10 A ll r ights reserved. No part of t his publica tio n m ay be reproduced, stored in a retrieva l system, or transm itted, in any for m o r b y any means, without the prior permission in w ritin g of Oxford U niversity Press, or as expressly permitted by law, or under terms agreed with che appropriate reprographics r ights o rganizatio n. E nquiries co ncerning rep ro ductio n o utside rhe scope of t he above should be sent ro t he R ighrs D epartment, Oxford U ni versit y Press, at th e address above You must no t circu late th is book in any o ther binding o r cover a n d you must impose th e sa m e con dition on any acquirer Britis h Library Cata loguin g in Publicatio n Data D ata availab le Library of Congress C ataloging in Publication Dara Manual o n interna tio na l courts and t ribunals/ edited by Ru th Macken zie, Yuval Sha ny, Cesare Roma no. - 2 nd ed. p. cm.

ISBN 978- 0- 19- 954527- 8 (hardback) l. Internatio n al courts. I. Macken zie, Ruth . IJ I. Rom a no, Cesare (Cesare P. R.)

KZ6250.M 36 34 l.5 ' 5- dc22

II. Sha n y, Yuva l.

2010 2010003766

Typeset b y Newgen Im agin g Sys tems (P) Led., C hen nai, India Printed in G reat Britain o n acid- free paper by CPI Anto ny Rowe

ISBN 978-0- 19-954527-8

I 3 5 7 9 I O8 6 4 2

CONTENTS

The Project on International Courts and Tribunals (PIC T) Introduction and Acknowledgements List ofAbbreviations

vi i IX XXlll

I GLOBAL COU RTS

4

1. The International Court of Justice 2. The International Tribunal for the Law of the Sea

40

3. The Dispute Settlement System of the World Trade Organization

72

II ARBITRATION INSTITUTIONS 4. The Permanent Court ofArbitration

101

5. The International Centre for Settlement of

125

Investment Disputes

III INTERNATIONAL C RIMINAL COU RTS AND TRIBUNALS

6. The International Criminal Court

157

7. The Ad Hoc International Criminal Tribunals: ICTY and ICTR

184

8. Hybrid International Criminal Tribunals: The Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon

212

IV REGIONAL ECONOMIC INTEGRAT IO N BODIES/ FREE T RADE AGREEMENTS 9. Courts of the European Economic Area 10. Courts ofJustice of Other Economic Communities

V

253 278

Contents

V HUMAN RIGHTS BODIES 11. The European Court of Human Rights

334

12. The Inter-American Court of Human Rights and the Inter-American Commission on Human Rights

364

13. The African Commission and Court on Human and Peoples' Rights

15. Other UN Treaty Bodies

387 415 43 1

16. Representation and Complaint Procedures of the International Labour Organization

453

14. The Human Rights Committee

VI INSP ECTION, REVIEW, AND COMPLIANCE MECHANISMS IN INTERNATI O NAL FINANCIAL INSTITUTIONS 17. The Inspection Panel of the World Bank

464

18. Other Inspection, Review, and Compliance Mechanisms in International Financial Institutions

478

V II COMPLIANCE PROCEDURES IN MULTILATERAL ENVIRONMENTAL AG REEM ENT S 19. Compliance Procedures in Multilateral Environmental Agreements

501 515

Index

VI

THE PROJECT ON INTERNATIONAL COURTS AND TRIBUNALS (PICT)

The Project on International Courts and Tribunals (PICT) addresses challenges and opportunities created by the growing number and role of international co urts and tribunals and oth er dispute settlement bodies that h as taken place since the early 1990s. PICT was jointly established in 1997 by the Center on International Cooperation (CIC), at New York University, and the Foundation for International Environmental Law and Development (FIELD), at the School of Oriental and African Studies, University of London. Since the early years, PICT has undergone several changes. In 2002, the London h ome of PICT moved to University College London with the establishment at the Faculty of Laws of the Centre for International Courts and Tribunals. In 2007, PICT was transformed from a joint undertaking of two institutions to an ongoing project, a research agenda, and a set of related activities carried out by a network of institution s and individuals. PICT's activi ties include research and policy dialogue, in particular through the organization of international conferences and symposia. For example, one current PICT project addresses the Impact oflnternational Criminal Procedures on Domestic Criminal Procedures in Mass Atrocity Cases (DOMAC). 1 Another is examining the Process and Legitimacy in the Nomination, Election, and App ointment of International Judges. 2 A third is, in cooperation with the International Law Association, developing guidelines and principles on the conduct of counsel, advocates, and others appearing before international courts and tribunals, to supplement the Burgh House Principles on the Independence of the International Judiciary. 3 And a fo urth project looks at the effectiveness of international co urts. 4 The outcomes of research projects, symposia, and other activities are disseminated through various means, including PICT's website (), a dedicated series by Oxford University Press on

1

2 3 4

. . . .

vii

1he Project on International Courts and Tribunals (PIC T) intern ational courts and t ribunals, 5 and a number of different law jo urnals.6 PICT couples acad emic research with concrete action aimed at facilitating the work of intern ational co urts and tribunals, and at developing the legal and p olicy skills of those involved in the life of internati onal courts and tribunals. For instan ce, PIC T 's activities include also teaching and training on the law and procedure on internation al courts and tribunals. PIC T h as fo ur D irecto rs, located at four different institutions: Ruth Mackenzie, of the U niversity of Westminster and the Centre for Internation al Courts an d T ribunals; Cesare Rom an o, at Loyola Law Sch ool Los A ngeles; Thordi s Ingadottir, at Reykjavik U niversity, and Yuval Sh any, at Hebrew U niversity. They wo rk with PICT's C hairman, Philippe Sands, and a Steering Committee, comprising seventeen disting uish ed intern ation al legal scholars, practition ers, and judges that oversee PICT as a w h ole. PICT's agenda is developed by the Directors wi th the support of the C hairman, in consulcacion with and endorsem ent by the Steering Com m ittee. Each PIC T Director works independencly or together with ocher Directors or other researchers around the wo rld, as opportunities ari se, on a part of the overall research agenda. The work undertaken by PICT h as generated considerable interes t, not only am ong academics, practition ers, governments, and internation al and n ongovernmental organization s, but also am ong the judges and secretari ats of the various internation al courts and tribuna ls them selves. E ach of these gro ups has b een actively engaged and represented in work undertaken by PIC T. PICT h as contributed to the growing role of internation al courts and tribunals, in particular by generating greater public awa reness on key issu es. It h as em erged as a primary source of information on the activities of intern ation al judicial bodies, and it h as laid down t he basis for the creati on of a perman en t fo rum fo r communication and learning between internati on al courts and trib u nals. For further information on PICT, visit o ur website or contact one of che co-Directors. 5 Y Shany, 7he Competing jttrisdictions of i nternational Courts and Tribunals (2003); C P R Ro mano, A N ollkaem per, and J Kleffner (eds), i nternationalized Criminal Cot