9 - International courts

Summary

Introduction

‘Law without courts’ seemed to Hugo Grotius an entirely coherent approach to the juridification of international relations. The first edition of his Law of War and Peace (De jure belli ac pacis, 1625) reflects an intense commitment to framing claims and rules for conduct outside the state in terms of legal rights and duties, but not to judicialisation, even though arbitration between sovereigns was addressed in earlier works he had read, such as Alberico Gentili’s Law of War (De iure belli libri tres, 1612 [1933]). Yet in modern times international judicialisation – the creation and use of international courts and tribunals – has been not only a significant component of liberal approaches to international order, but for some an indispensable concomitant of juridification.

The opening section of this chapter provides an overview of the formation of what are now ten basic types of international courts. The following section offers some balance to the tendencies (implicit in the approach taken in the first section) to acclaim each flourishing legal institution as an achievement and to study only what exists, by considering the marked unevenness in the issues and in the ranges of states currently subject to juridification through international courts and tribunals. The final section addresses the question whether the density and importance of the judicially focused juridification that now exists has implications for politics, law and justice that are qualitatively different from what has gone before. This is explored by examining some of the main roles and functions of international courts, considered not simply as a menu but as a complex aggregate.