The purpose of this chapter is to discuss the role of judicial dialogue between international courts in the interpretation of customary international human rights law. Judicial dialogue refers to international courts’ spontaneous practice of referencing other international courts’ decisions or international instruments that are outside the international court’s own judicial system. International courts engage in this practice in order to both identify rules of customary international human rights law and reach common interpretations on the meaning and scope of norms protecting human rights. Through the analysis of international courts’ case law, this chapter discusses the impact of judicial dialogue consisting in cross-references to legal norms and judicialdecisions on the interpretation of rules protecting human rights, especially when judges use case law from other courts in support of their interpretation.

Effectiveness and efficiency in judicial decision-making are the most important objectives of any court. While this concerns primarily the final decisions that are rendered, it is also relevant to the judicial process and the legal reasoning that a court or tribunal carries out to reach its decision, in order to ensure continuity and coherence. Traditional understandings of the international judiciary have seen the judges’ role as one where they discover and declare the law by applying it at face value to the legal issues that have arisen within the case, thereby achieving effectiveness through what is said to be direct and clear application of the law. This sits rather uneasily with the identification of customary international law (CIL), which is by its very nature unwritten and established by identifying evidence of state practice and opinio juris. The aim of this chapter is to examine instances of judicial activism in the decision-making of international courts and tribunals during the determination and application of CIL and how that allows for either judicial effectiveness or ambiguity.

When faced with the inevitable task of interpreting customary international law (CIL), what should a court do and what should it consider? Should it engage in an ‘inductive’ process of sifting through available evidence of state practice and opinio juris or a deductive process designed to reason logically from principles embedded in the rule? Should the court invoke something like the rules of treaty interpretation with their focus on good faith, ordinary meaning, context, and object and purpose? International law doctrine falls short here. Figuring out how to interpret and apply custom requires a theory of custom, a focus on the normative stories we tell. This reveals that there is not just one story explaining why custom should be a source of law, but multiple stories. What we call ‘custom’ may represent or draw from at least three different sources of law: Negotiated Law, Legislated Law and Adjudicated Law. This chapter aims to show that the non-treaty rules derived from each draw on different sources of legitimacy, operate according to different logics, dictate different methods of interpretation, and favour different methods for resolving disputes.

The ICC launched in 2002 to judge cases against individuals accused of war crimes, crimes against humanity, and genocide. It is unique among international institutions in this book in that it imposes its obligations upon individual persons rather than governments. This chapter shows the powers and limits on the authority of the ICC to punish people for large-scale atrocities. The practical power of the ICC is shaped by both the difficulty of apprehending people and the active work of those who wish to remain insulated from accountability.

The ICJ is the primary court for legal disputes among governments. It hears cases in which one country claims that another country has violated its obligations under international law. This chapter introduces the ICJ by examining its legal foundation in the Statute of the ICJ, and shows its powers and limits in practice by looking at the cases of Belgium v. Congo (on genocide) and Australia v. Japan (on rights and obligations for whale hunting under the International Convention for the Regulation of Whaling).

The concluding chapter starts by very briefly summarizing key patterns in the litigation over judicial selection and then returns to the de Tocqueville quote and the issue of American exceptionalism. To assess the exceptionalism question, the chapter includes a discussion of litigation over judicial selection outside the United States, finding that it occurs in very few countries and where it does occur, is generally very limited. One exception is the recent burst of litigation in international courts over judicial selection in Poland. Another possible exception is Israel where there has been litigation concerning several judicial selection issues. Overall, the chapter concludes that American exceptionalism in litigation over judicial selection does not lie in the existence of such litigation but in the frequency of that litigation.

Chapter 4 examines the wave of cases before international courts and tribunals (ICTs) against the most innovative tobacco control measures, focusing in particular on Philip Morris v Uruguay (ICSID) and Australia – Plain Packaging (WTO). It contends that the alleged ineffectiveness of the tobacco control measures was one of the key arguments of the claimants, who supported their claims by submitting a hefty amount of evidence. These evidentiary challenges presented novel and demanding tasks for adjudicators of ICTs. Against this backdrop, this chapter first analyses the nature and features of the evidentiary challenges to tobacco control measures (Section 4.2). Second, it reviews how the ICTs have assessed them, zooming in on the interpretation of flexibilities and the use of different sources of evidence (Section 4.3). The picture that emerges from this chapter is that of unnecessary, manufactured complexity. Shifting the discussions on tobacco control measures from the WHO/FCTC to trade and investment ICTs, the tobacco industry has effectively managed to masterfully use international law to its own advantage. It has reframed the debate, all while starting expensive and lengthy judicial proceedings that have taken almost a decade to be concluded.

Our understanding of cross-border judicial dialogue is dominated by the Global North, especially the analysis of the European judicial space, which has limited application outside Europe, and ‘global judicial dialogue’, which is a rather asymmetric phenomenon: Global South courts such as the South African and Colombian constitutional courts cite totemic Western courts such as the US and German courts with far greater frequency than vice versa. This chapter seeks to enhance our understanding of judicial dialogue from the African and Latin American perspectives, nuancing what dialogue means in Global South contexts by comparing the different patterns and facilitating conditions in these regions, including the impact of shared languages and legal traditions, the development of regional integration projects, and pan-regional democratic development. It is argued that leading national courts play highly significant roles in fostering intra-regional dialogue but can also hamper such dialogue by prioritising global extra-regional interlocutors in their citation practices and reproducing global dynamics through asymmetric citation patterns at the intra-regional level. While this pattern highlights the difficulty of de-centring and challenging Global North epistemic dominance in the arena of judicial dialogue, it also suggests that considered changes in judicial, practitioner, and scholarly practice and collaboration can disrupt these dynamics and generate more inclusive dialogue.

UN Charter Art.33 points to means such as negotiation, mediation and arbitration to settle disputes and to avoid the risk of use of force. Judgments of the International Court of Justice are of great value also to further develop international law. However, courts are hardly ever employed to save peace by the judicial settlement of big disputes. Following the precedent of the Nuremberg tribunal, special tribunals have been set up to try war crimes. Even more important, an international criminal court has been established. Fact-finding (termed ‘enquiry’) has achieved a prominent role both to solve and to prevent conflicts. Thus, the safeguards system of the IAEA using inspectors, cameras and satellites and environmental sampling continuously verifies that no fissionable material is diverted away from peaceful uses. With much fake news around, impartial professional inspection, monitoring and reporting – for instance, about the use or possession of chemical weapons – has become more important. Diplomacy seeks to secure or create peaceful relations by agreement, precluding or removing the threat or use of force. Examples are given of successes of diplomacy to preserve peace as well as of failures and of talks going forever without result.

Colonial mixed courts were promoted by Western powers as an alternative to consular jurisdiction in non-Western countries. Unlike ordinary local courts, mixed courts were composed partly or entirely of foreign judges and applied Western or Western-inspired procedural and substantial rules. Unlike consular courts, they were considered an integral part of the legal order of the host polity, which could be a fully sovereign state, a protectorate, a mandate, or a condominium. After identifying the core features of colonial mixed courts and explaining their rationale, this chapter examines judicial activism in adjudicating the compensation mechanisms provided to foreigners by some mixed courts. The chapter shows how, despite the demise of mixed courts in the course of decolonisation, their pioneering experience in the field of transnational dispute resolution and the protection of individual rights contributed to the emergence of international judges as guarantors of individual rights in the twentieth century.

This chapter explores the potential role of national and international courts and tribunals in relation to claims for environmental damage to areas beyond national jurisdiction (ABNJ). Access to remedies includes facilitating access to international and national courts to initiate claims for environmental harm, but also requires consideration of the associated rules that may constrain the ability of the court or tribunal in question to provide relief, such as jurisdiction, rules on the choice of law and the recognition and enforcement of judgments rendered in such cases. The chapter begins with a discussion of the general rules and principles concerning access to remedies under the rules of state responsibility and domestic civil liability, respectively, before turning to the specific rules in ABNJ. It also addresses the substantial additional challenges that each of these sets of rules pose to realizing the goals of liability regimes, including the need to prevent environmental harm and restore the environment, to provide for effective deterrence of risky behaviour, to ensure a level playing field and to ensure adequate and prompt compensation.