Title: Tribunal Discourse and Intercourse: How the International Courts Speak to One Another
Abstract: This Article analyzes the development of a common law for international tribunals through the interpretation of applicable treaties and the interpretation of customary law—a decidedly difacult and amorphous process. The author notes there has been signiacant development in the common law of the tribunals, but that there is still a long way to go, especially on the issue of when a court should simply interpret or apply existing law and when it should “legislate” or create new law. The Article also examines the less formal rules and practices beyond formal judgments, the “soft” law and practices, which are indispensable to the continued existence of international tribunals. This Article suggests “soft” law and practices may turn out to be more inouential in the overall record of these courts than the jurisprudence. I. Thoughts on the Relationship Between Common Law and Customary Law First, I want to clarify the relationship between what we think of as common law and the customary law norms that restrain international criminal courts in varying degrees. In our Anglo-Saxon legal tradition, common law develops from the accretion of court decisions dealing with similar problems, and through a process of reaning, expanding, and distinguishing among those situations, principles of law emerge. Sometimes these principles are codiaed into statutory law, but often they are not. In the criminal law area, common law has * Judge, United States Court of Appeals for the District of Columbia Circuit, 1979– 1999 (ret.); Chief Judge, 1986–1991; Judge, International Criminal Tribunal for the former Yugoslavia (1999–2001); LL.B. Yale Law School, 1951. This article is a transcript of a speech presented at “Sharpening the Cutting Edge of International Human Rights Law: Unresolved Issues of War Crimes Tribunals,” a symposium on war crimes tribunals at the Boston College Law School on March 24, 2006. The speech has been edited for clarity and has not been fully cited.
Publication Year: 2007
Publication Date: 2007-01-01
Language: en
Type: article
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Cited By Count: 3
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