Inherent Powers of International Courts and Tribunals

Chester Brown

 Started off with an example: the Serbia case re: Legality of Use of Force had the issue of
whether the ICJ had the power to remove cases from its List before deciding if it had
jurisdiction.
o ICJ did not rule on this expressly but it exercised the removal power anyway.
 Another example: ICJ was requested to remove cases because it [ICJ] was not competent
o ICJ had no JD
o Judge Higgins begged to differ: this removal was an inherent power, therefore, the
court, as a master of its own procedure, may motu proprio strike a case from the List
o This inherent power is not related to the intention of the parties but to the judicial task of
the court

I. Sources of law relating to procedure in international adjudication

No fully developed theory re: source
 BUT Art. 38, ICJ Statute:
o ( ) The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
 international conventions, whether general or particular, establishing
 rules expressly recognised by the contesting states;
 international custom, as evidence of a general practice accepted as law;
 the general principles of law recognised by civilised nations;
 subject to the provisions of Article , judicial decisions and the teach-
 ings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
 Art. 38 (1) only applies to the ICJ but is widely regarded as universally applicable (to other
international courts)
A. Constitutive instruments and rules of procedure
 Since international courts are products of the express will and consent of states, this
consent is likewise the source of procedural powers in the form of an instrument –
compromis
o Ex: Power to determine extent of own jurisdiction, power to grant provisional
measures, power to permit the intervention of third parties; the power to give an
interpretation of judgments and awards; and the power to revise judgments and
awards.
 Most bodies grant the courts it created with power to frame its own rules, which generally
don’t need to be ratified anymore [the rules].
o In reality, state-parties have little control over provisions as members of the court
determine the rules
o But there are exceptions where it is not the court that decides the rules: when the
parties to the case jointly propose modifications or when an ad hoc tribunal asks
parties to comment on the rules.
B. Powers of international courts faced with lacunae (gaps in the law)
 Three types of lacunae:
1. Where issue has been deliberately not addressed by drafters
2. When drafters failed to foresee all possible circumstances in the future
3. Provisions are ambiguous
 Tapos tumalon sa…”emphasized the relevance of custom.”
 o Factory at Chorzów: the PCIJ held that the obligation to make full reparation for an
internationally wrongful act was ‘established by international practice and tribunal
decisions.’
o The application of ‘general principles of law’ by international courts as a source of
judicial procedure is well established.

II. Inherent powers in international adjudication

A. Inherent: permanent attribute; derived from thing’s very nature
 Inherent powers: originated from English common courts; necessary to enable court to act
effectively within its own jurisdiction
o Parallelism is drawn from exercise of local/municipal courts of their inherent powers
(bale gaya-gaya ang international courts)
o Examples: make own rules, stay proceedings, correct earlier decisions for injustices,
exercise control over person/inferior courts (for appeal)
 2 views on inherent powers
 Only superior courts can exercise
 From its authority to prevent its very own processes from being obstructed.
 Both superior and inferior courts can exercise – this view is more reflective of reality
 All courts may enforce their own rules to suppress any abuses of its processes
 Objections were raised re: exercise of inherent power: Fundamental difference of functions
between municipal and international courts so di pwede basta na lang gayahin
 It needs to be recalled once more that the essence of jurisdic- tion is consent: if the Statute
expresses the consent of States to a limited power to indicate provisional measures, it is
self-contradictory to argue that, by creating a court, they implicitly consented to a wider
power.’
B. Argument against exercise of inherent powers
1. Existence of inherent powers depends on unlimited compulsory jurisdiction
o States may easily reject an international court’s exercise of powers, wala namag
sanction
o Counter-argument: Court decisions re: the exercise of such powers rarely explained
it to have come from compulsory shit. Furthermore, the fact that judges on
international courts are not acting in pursuance of a sovereign grant of unlimited
jurisdiction need not deprive them of powers needed to ensure the fulfillment of their
functions.
2. International courts can only exercise expressly conferred powers
o Since they were created by states’ consent, their powers must also be from such.
Without such authorisation no court neither in the United States nor anywhere else
has a right to reopen.
o ‘A body that is created by a legal instrument does not have “inherent” powers. It has
only the powers that are conferred on it by that instrument, either expressly or by
necessary implication.’
o Counter: creating statutes often have lacunae + this argument should not be used to
stop the development of necessary/desirable internal rules

III. Illustrative examples of the exercise of inherent powers of international courts

 Nature of inherent powers: provides for orderly settlement of all matters in dispute; derives
from mere existence of court; conferred to fulfill basic judicial functions
 In this sense, the constitutive instruments (parang creating charter ng court) and rules may
be regarded as declaratory of an international court’s powers, rather than constitutive.
 Example: the compétence de la compétence, or the power of international courts to
determine the extent of their own jurisdiction; framing rules of procedure; power to rule on
 counterclaims, the power to reformulate the submissions of the applicants; the exercise of
‘judicial economy’, in refraining to rule on certain claims if it is not necessary to do so to
resolve the issues in dispute; the creation of a special procedure as a means of maintain-
ing jurisdiction over a dispute; the power to make site visits; the power to order the
preparation of an independent expert report; the power to issue practice directions, as
several international courts have done in recent years, the power to hear preliminary
objections regarding the court’s jurisdiction and admissibility separately from the merits.
o These are necessary incidents of judicial functions AS LONG AS not inconsistent
with the court’s constitutive instrument to control all aspects of proceedings before
them and fulfill itself properly and effectively.
o Best calculated to ensure administration of justice
o Even includes post-adjudication powers like rectification, interpretation, and revision
when there is a discrepancy, for the interest of good administration of justice, and
the material error is on the face of the decision or if may fraud and shit.
 Another example na sikat: Factory at Chorzów case – does power to grant awards include
power to determine amount? YES, because if not, the decision would not have full effect,
an important part will remain unsettled

IV. Source of inherent power

 Historically, ICJ ‘simply assumed’ its inherent powers.
 Nuclear Tests case: to safeguard its basic judicial functions, and by nature of its mere
existence as a court, inherent jurisdiction is conferred upon it.  may issue about this
statement kasi if inherent naman pala, bakit need pa to confer
 Four possible sources
A. General principles of law
o If from GAPIL, therefore few lang yung powers because few lang ang
GAPIL
o GAPIL are unlikely to provide a basis for all cases where international courts
seek to exercise an inherent power, as general principles which are widely
applicable in domestic legal orders are relatively few in number, and do not
always relate to the existence of procedural powers.
o Methodological approach is not one which is consistent with the application
of general principles of law
B. Doctrine of implied powers
o Treaties creating courts are to be interpreted so as to make them effective
rather than ineffective
o International courts have in general not sought to imply powers from the
express terms of their statutes. This suggests that international courts
themselves find the doctrine of implied powers inappropriate.
o ‘Inherent powers’ rather than ‘implied powers’ -- while the basic
methodology of implied powers might provide a solid basis for the exercise
of inherent powers, it is not one that international courts often invoke.
C. Identity of international courts as judicial bodies
o Relevant powers are usually attributed to judicial bodies for their duty to
entertain a case.
o Example: power to raise for themselves prelimnary points even before
deciding on jurisdiction
o Such terms as “tribunal”, “judgment”, competence to “pass judgment on
applications”, are generally used with respect to judicial bodies. A court is
required to hear both sides  so powers connected to these
 o Moreover, to say that a power is inherent ‘in a court’ is unhelpful when one
does not take account of the nature or function of the court or legal system
in question.
D. Functional justification
o Abundant, since a court has many functions
o “the power to exercise it . . . is a necessary condition of . . . any court of law
. . . being able to function at all”
o The conclusion that the source of inherent powers can be found in the
necessity of international courts to fulfil their functions raises the question of
the extent of those functions…so next topic is…

V. Functions of international adjudication of inherent powers

 2 main schools of thought
1. It is has a private function
o Merely ‘to do justice’ between the litigant states’ and ‘decide a dispute in
accordance with such rules of law as may be agreed by the parties’
2. It is has a broader public function; broader community interests
o Duty includes positive creation of norms for the international community
– this additional duty enhances the ICJ’s integrity in permitting it ‘the
normal control . . . of its own procedures’.
o Also: prevention of any ‘abuse of process’ in international adjudication
and the progressive development of international law.
o ‘Much more than the establishment of peace, the development of
international law is the essential function of judicial settlement by a
permanent and institutionalised tribunal.’
o Continental Shelf Case: consideration of interests other than those of the
parties to the dispute. For instance, a willingness to take account of the
interests of third states which have been refused permission to intervene
in disputes granted the status of ‘non-party intervener’—a status not
contemplated by the ICJ Statute—to Nicaragua in Land, Island and
Maritime Frontier Dispute between El Salvador and Honduras
o They can assist in lending legitimacy to the international arrangements
of states.
o Summary: broader public function—the proper administration of
international justice, the development of the law, and the consideration
of public interests—are important functions

VI. Limitations to exercise

A. Limitations to international judicial jurisdiction
o For example, if moot na yung issue or if absent yung third party whose rights form
the subject matter of the dispute, or for reasons of judicial propriety
o This limitation to the exercise of inherent powers, then, is not due to the international
court lacking jurisdiction, but, rather, that it ‘should rule the claim to be inadmissible
on some ground other than its ultimate merits’
B. Functions of the particular international court/tribunal
o An international court cannot claim to possess an inherent power if that power is not
necessary for the fulfillment of its particular functions.
C. Limitations in the constitutive instruments of international courts
1. Where there is a clause contraire
o Nottebohm: ICJ held that an international tribunal had an inherent power to
determine the extent of its own jurisdiction ‘in the absence of agreement to the
contrary’
 2. Where the inherent power would be inconsistent with the constitutive instrument
o Heathrow Airport User Charges: In that case, the US argued that international
tribunals had ‘inherent powers to revisit certain areas of an award’, UK objected
but court held that it had an express power under its Rules to re-open a decision
before the rendering of the award.
D. Relationship between the international court and the parties
o We need to examine the deference displayed by each international court to the
parties. This affects coercive exercise of powers kasi some courts display
reluctance to order production evidence, for example. i.e. if papaya ba yung
uutusan na states
 Corfu Channel and Tehran Hostages: the ICJ did not even draw any
adverse inferences from the UK’s and US’s refusal to provide the
documents.
 In contrast, tribunals constituted under the auspices of the PCA, ICSID,
and NAFTA to settle private or mixed disputes have proved more
amenable to the exercise of this power.
o Thus, if the proposition is advanced that international courts have an inherent
power to issue such orders, one must, nevertheless, take account of the
deference displayed by each particular court towards the parties, as this will have
an impact on the exercise of that power.

VII. Conclusion
 Sources of law relevant to procedure are: relevant international court’s constitutive
instruments and rules of procedure, and also include customary international law,
general principles of law, and judicial decisions and doctrine.
o With respect to their procedural powers, international courts are not restricted to
those conferred by their constitutive instruments—whether express or implied—
but can also exercise inherent powers.
 While the source of inherent powers in international adjudication has not previously
been clarified, it is suggested that it lies in the need for international courts to fulfill their
judicial functions: the settlement of international disputes by adjudication, and the
proper administration of international justice, although each international court may, in
addition, have different functions specific to the regime within which it operates.
 There are important restrictions on the ability of international courts to exercise inherent
powers; these lie in the limitations to the exercise of international judicial jurisdiction; the
extent of the functions of international courts; the terms of their constitutive instruments;
and, also, the relationship between a particular international court and the parties before
it.
 International courts might, through the careful exercise of such powers, better manage
the complex challenges being posed to the administration of international justice.