Georges Abi-Saab, ‘Fragmentation or Unification: Some Concluding Remarks’ in ‘The Proliferation of International Courts and Tribunals: Piecing Together the Puzzle’ New York University Journal of International Law and Politics Vol. 31, No. 4, pp. 919-933.
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Background
Georges Abi-Saab is a distinguished Emeritus Professor at the Graduate Institute in Geneva and a former member of the WTO Appellate Body. Originating in Egypt, he dedicated his legal career to contribute to the development of international law mainly from the perspective of developing countries, many of which obtained independence when he was a young scholar. The article at hand is the conclusion of a special issue of the New York University, Journal of International Law and Politics (NYU JILP) entitled The Proliferation of International Courts and Tribunals: Piecing Together the Puzzle. The special issue was compiled from the papers presented at a conference of the same name which was organised by Project on International Courts and Tribunals (PICT) with the NYU JILP in October 1998. The conference was attended by forty international legal scholars and practitioners, who debated the problems for international justice associated with the growing number and increasing use of international adjudicative, monitoring and fact-finding bodies, including problems of variation and contradiction amongst normative standards and in institutional practices, and related questions as to whether there is or should be a unified system of international law.
Summary
Georges Abi-Saab opens by commenting on the methodological difficulties that occur when theoretical positions are taken that are in stark contrast to one another. Abi-Saab makes three theoretical propositions in this regard. The first is that there is both a unity of legal thought, in our understanding of terms and a diversity of legal orders where a principle of law existing in all legal orders by itself tells us nothing about the applicable law. Common concepts are incarnated in different ways yielding different outcomes in different legal orders. The second is unity of legal order and diversity of tribunals: Every legal order generates and specifies its rules in different ways, with different results, and these rules and procedures ultimately derive their legitimacy from the facto of belonging to this legal order. Within each legal order there exists a multitude of organs charged with the implementation and application of law, including a diversity of courts and tribunals. The third is diversity of tribunals and unity of the judicial system. What these judicial organs have in common is that they belong to the same legal system and derive their legitimacy and physiognomy from it. Even the most independent tribunals within the legal order are defined in their role and the ambit of their jurisdiction in terms of their relation to the regular courts structure.
In reviewing the specificity of international law Abi-Saab pinpoints arbitration as the sole form of adjudication in general international law until the establishment of Permanent Court of International Justice (PCIJ) in 1920. The idea of bringing arbitration under the purview of the PCOJ was never broached and the dangers of a multiple, uncorrelated adjudicative organs was avoided as long as adjudication, to either the court or arbitration, remained rare. The situation did not change with the succession of the International Court of Justice to the PCIJ after the Second World War. Since the 1950s in parallel with the rapidly growing complexity and intensity of international relations, international law has witnessed prodigious development, not only in traditional fields but also in expanding and more specialized ones. This has been accompanied by a proliferation of specialized judicial organs on both the universal and regional levels such as administrative tribunals of international organizations, the Panels and Appellate body of the WTO, the new Law of the Sea Tribunal, the incipient ICC, the ECJ, regional tribunals of human rights and ad hoc tribunals such as the International Criminal Tribunals. This proliferation of specialized tribunals has caused an imminent danger of collision: especially considering almost all of these tribunals are of one instance with no possibility for appeal. Occasionally some vague lineaments of a structure become perceptible although the possibility of appeal came from the lower tribunal itself and does not emanate from general international law or the inherent powers of the international court.
Abi-Saab sees the growth of specialized tribunals as a good sign, illustrating an evolution of international law with a greater division of labour although he underlines the importance of preserving the unity and overarching principles of international law that make such specialization possible but also come under strain as specialisation multiplies. In this respect he argues for coordination between different tribunals to reinforce the system rather than erode it.
In the final section Abi-Saab comments on the possibility of a judicial system without a centralized judicial power invested in it and with the jurisdiction of its components remaining, in general, ultimately consensual. He believes that such a system can develop through the cumulative process of international law, of which custom is the most visible but not the only example. This process would progressively fit the different particles of a consensual or authoritative jurisdictional empowerment into a certain structure. Although this would require the conscious will of the relevant legal actors and the adoption of supportive judicial policies. He believes that it is necessary for the ICJ to play a central role in this process and act as a higher court in a legal order that does not provide for formal hierarchy. In this respect the ICJ should place emphasise its status as an organ of the international legal order rather than an organ of the parties or a mere mechanism in their hands whose sole purpose is to settle their dispute, be it through the exercise of transactional justice.
To conclude Abi-Saab cautions that the development of international law is usually precipitated by crises and atrocities, through decisions taken hastily and under great pressure. In the absence of an international legislature, international law does not dispose of sufficient autonomy to develop rationally but rather has to seize all opportunities to develop. In this respect the focus should be on prevention rather than punishment by first seeing what is feasible and then trying to improve on that in the light of experience.