Towards Deeper Judicialisation: Explaining Thailand’s Increasing Engagement with International Adjudication

This paper calls attention to a little-noticed phenomenon about the Thai government’s increasing involvement in international adjudication over the last two decades. For the first time, it has participated in the advisory proceedings before the ITLOS, and made oral statements in the advisory proceedings before the ICJ. It has faced the first treaty-based arbitration by a German investor. There has also been an attempt to initiate the proceedings at the International Criminal Court against Thai officials. All of these parallel the government’s extensive participation in the dispute settlement mechanism of the WTO. What accounts for such developments? The paper argues that Thailand’s constantly increasing engagement with international adjudication should be understood as part of the judicialisation of international relations. Specifically, it is shaped by four main conditions. First, the Thai government has cautiously yet constantly expanded its acceptance of jurisdiction of courts and tribunals. Second, the number of potential claimants has exponentially increased. Third, the composition of the international litigator communities has changed, resulting in the significant increase in the number of lawyers willing to pursue new cases. Fourth, Thai government officials are learning to strategically make themselves more visible in the litigator communities.

The Arbitration Panel Report in Ukraine – Export Prohibition on Wood Products: Lessons from the ‘Pegasus’ of International Adjudication

The Arbitration Panel’s decision in Ukraine – Export Prohibition on Wood Products suggests the emerging trend among some Word Trade Organization (WTO) Members to settle their trade irritants regionally. This dispute was adjudicated between the EU and Ukraine, which are both WTO Members, under the WTO rules that are incorporated by reference into the Association Agreement between these parties and by the Arbitration Panel the two members of which are well-known WTO adjudicators. The dispute settlement proceedings in this case thus illustrate how regional dispute settlement mechanisms work in practice and shed some light on whether these mechanisms could serve as a viable alternative to the WTO at the time of the ongoing WTO dispute settlement crisis. Moreover, from a substantive perspective, some may view this decision as an important milestone in international economic law, which contributes to the long-standing debate on how the right balance should be struck between trade and environmental considerations, in this case, the conservation of forests. This article, however, addresses several important shortcomings in the Arbitration Panel’s reasoning, which appear to diminish the relevance of the decision beyond the dispute at hand.

The Theory and Practice of Precedent in International Adjudication: A View from Ukraine

This article argues that legal pragmatism and realism are the methodological basis for considering the law-making function of international courts. Classical scientific approaches, the representatives of which view courts only as applicators of the law, do not allow research into the nature and role of international adjudicative bodies. Since there are several positions on the nature, content, and legal force of the precedent decisions of international adjudicative bodies (the are both diametrically opposed and, to some extent, similar), the author takes a position that considers the characteristics of modern international relations. The author proposes to classify international judicial precedents by considering the construction of judicial institutions and the legal force of decisions because these criteria reflect the nature and significance of such decisions. The classification divides precedents into vertical and horizontal (persuasive). The author argues that vertical precedent set by a particular body of international justice can be absolute, i.e., a structurally lower judicial body can, under no circumstances and exceptions, make a decision without taking into account the legal conclusions made by the higher judicial body. Vertical international judicial precedent may also be relative, i.e., in certain circumstances, a higher judicial body may make a different decision in a similar case, which suggests no obligation to be bound by its own previous decisions. Analysis of the decisions of many international courts has led to the conclusion that international courts create judicial precedents of persuasive content. In particular, the author uses decisions of the European Court of Human Rights (ECtHR) that contain citations of the Court’s own legal positions and the International Court of Justice’s legal positions. It is proved that the so-called horizontal precedent is a persuasive precedent, the content of the legal provisions of which is based on the authority of the cited international court’s decisions. Thus, international judicial precedent not only exists but must be recognised legally because only the formal enshrinement of the legal force of such decisions will lead to the recognition of judicial precedent as a formal source of international law.

International Economic Law Tribunals and Global Social Justice

International courts play a key role in the attainment of global social justice objectives. The core contributions of international adjudication to global social justice are, not surprisingly, in line with the core functions of adjudication: the enforcement of substantive rights in a setting of fair procedures. Fully realizing the potential for justice inherent in this role is limited, however, by certain institutional and structural features unique to international adjudication. This article analyzes these opportunities, challenges, and background conditions in the context of international economic law (IEL) adjudication, where the results are mixed. For example, one can see in the case of the World Trade Organization (WTO) evidence of institutional and doctrinal evolution, albeit uneven, toward more substantively progressive outcomes. In the case of the foreign investment regime, however, one can see evidence of this regime retarding global social justice rather than advancing it. This makes it all the more important that all judges and arbitrators in IEL adjudications consider carefully the interpretive, remedial, and progressive roles that principles of justice can play in adjudication, particularly in the face of any deficiencies in procedural or substantive justice in the law or forum within which they operate. The work of IEL adjudication offers a number of possible sites for interpretive practices according to principles of justice, such as the resolution of disputes involves difficult interpretive questions centered around fairness and unfairness; equality and inequality of treatment; the scope of exceptions; and the meaning of evolutionary terms. Capitalizing on these opportunities and moving IEL adjudication toward global social justice requires what effective judging always requires: a vision of the goals of the institutions and regimes in question; an understanding of the social issues the regime either was created to address or touches incidentally through its actions and externalities; careful attention to the relationships among the relevant actors and their expectations; and a sophisticated understanding of the legal context and legislative history of the law in question.

Framing in and through Public International Law

Framing is pervasive in public international law. International legal norms and international politics both inevitably frame how international actors perceive a given problem. Although framing has been an object of study for a long time, it has not been systematically explored in the context of social cognition and knowledge production processes in public international law. We aim to close this gap by examining the implications of framing effects—that is, issue framing and equivalence (including gain-loss) framing—for preference and belief formation in specific settings. After providing an overview of the experimental evidence of both types of framing, we identify typical situations in public international law where framing effects play an important role in social cognition and knowledge production processes. Without claiming to be exhaustive, we focus on international negotiations, international adjudication, global performance indicators, and norm framing.

Between the Law of the Sea and Sovereign Immunity: Reflections on the Jurisdiction of the Annex VII Arbitral Tribunal in the Enrica Lexie Incident Case

The jurisdiction ratione materiae of an international court or tribunal in a particular dispute settlement system relies on a sensitive balance between the safeguard of the consensual basis of jurisdiction and the need for the effective settlement of international disputes. Thus, the scope of the jurisdiction ratione materiae of an international court or tribunal constitutes a crucial issue in international adjudication. This issue was vividly raised in the 2020 Enrica Lexie Incident arbitration between Italy and India. In this case, the arbitral tribunal constituted in accordance with Annex VII to the UN Convention on the Law of the Sea held that it had jurisdiction to decide the issue of immunity that necessarily arose as an incidental question in the application of the Convention. However, the validity of the Tribunal’s approach needs careful consideration. Therefore, this article critically examines the Arbitral Tribunal’s approach in the Enrica Lexie Incident arbitral award.

The Practice of Appending Declarations at International Courts and Tribunals

The possibility for judges and arbitrators to append individual opinions is a discretionary right that has existed since the early stages of international adjudication. From its inception, clear boundaries have existed between the three different kinds of individual opinions, namely, declarations, separate opinions and dissenting opinions. Despite these boundaries, the practice on appending declarations shows that they have never been circumscribed, to merely record the fact of the concurrence or dissent of a judge. In consequence, some analyses exist in an attempt to explain what the differences between declarations and other individual opinions are. The most recent practice from judges when appending declarations, however, seems to run counter to the conclusions provided in the said analyses. This fact leads to the question as to what is, in the light of this recent practice of appending individual opinions, the difference between declarations and separate or dissenting opinions. This article attempts to address the said question and as a consequence the relevance of declarations in international adjudication.

Part I Context, Ch.5 Fragmentation

This chapter examines fragmentation within the field of international environmental law. There is long-standing scholarly engagement with the fragmentation of international law into largely self-contained ‘regimes’ such as trade, investment, the law of the sea, and human rights. Such regimes are of fundamental importance to the governance of environmental matters. Multilateral environmental agreements (MEAs) covering specific issues and sectors now number in the hundreds, and at times their aims and methods may be in opposition, while gaps remain especially in implementation. The chapter begins with a discussion of the functional conception of law-making within ‘regimes’, which has origins in both international relations and international law, and argues that the governance of environmental matters does not always (or even most often) happen in the context of environmental treaties and environmental institutions but also within norms and institutions that are constituted to pursue other functions, such as trade liberalization or investment protection. It then considers how international adjudication and the proliferation of international courts and tribunals have special salience for environmental matters. The chapter also looks at coordinating initiatives, including the proposal for a Global Pact for the Environment.