Unité d’Application du Droit International à l’Echelle Globale et Responsabilité des Juges

This article analyses the relationship between Courts and tribunals in the interpretation and application of international law. The goal here is of crucial importance: that of guaranteeing the unity of international law and avoid fragmentation. This relationship is considered at two levels. The first level is vertical: how do national courts perceive and react to international law? In an ideal approach, based on a federalist model, there would be an organic hierarchy insuring that national judges accept and apply international law, under the control of the relevant international jurisdictions. If this model is not a reality today, it is misguided to believe that there are not any signs of its possible future realisation. Inspired by George Scelle’s role splitting theory, according to which national institutions act as the agents of the international legal order, this article shows the multiplicity of cases where the local judge is indeed directly called upon to give effect to international law. Classical institutions, such as the exhaustion of local remedies, but mostly new developments linked to the institutionalisation of the international community, in fields such as peace and security, the multilateralisation of obligations and its consequences on state responsibility, or even more recent innovations in international criminal law, illustrate the articulation of the international and national legal orders. The second level is horizontal: what is the relationship of international jurisdictions between themselves, and more specifically, what is the role of the ICJ within the international legal order? This article first shows that there is no formally recognised primacy of the ICJ over other courts and tribunals. On the contrary, several sub-orders of the international legal order (ECHR, WTO, EU…) give exclusive jurisdiction to the tribunals they create. The ICJ has generally avoided, except in rare cases (February 2007, Genocide Case), pronouncing itself directly on decisions from other Courts. Still remains to be answered the theoretical question of the relationship of the ICJ with other jurisdictions. It appears that referring to general principles of procedural law (lis pendens, res iudicata) borrowed from national laws is of limited use, given that what makes these tools effective in national systems (i.e, its integrated nature), is specifically what is missing at the international level. What this article argues, is that the unity of international law will ultimately depend on the openness and good will of the judges. At the national level, it requires judges to acknowledge the evolutions of international law, as they have done in Italy in the Ferrini case where the jus cogens nature of the breached norm led the court to set aside the application of State immunity. At the international level, it requires of specialized judges to accept that the lex specialis they apply does not exist in a void and must be read in light of general international law. It also calls upon the ICJ to not hope to be granted a formal authority over other courts, but rather to reinforce its moral authority by pronouncing itself on, and advancing, the scope and interpretation of international law, at every opportunity