Continuing with Courts and Tribunals

So coming back, to the definition and etceteras.

Why the international courts and tribunals have the responsibility to keep the international legal system as a coherent and united set? Why the responsibility is given to the international judges and arbitrators to keep together the system and avoid contradictions? Why not the States who are the ones that create the laws?

The subset of answers I can think of are multi-tier, but I don’t know if one is a step to the other on a subsequent set of steps or they are jammed together with no possible category, however, I do think we can peel the onion, one layer at a time. So if we go at the core of the problem, is within the limits of the international legal system. It’s rudimentariness.

For starters, the States, as we said before, are the ones who create laws at an international level, such laws come labeled at international treaties, they have a free will, either to create or not to create treaties, which can be multinational or bi-national, that can cover different subset of issues, one only for water, the other for maritime delimitations, child custody, international contracts, international contracts through the use of technology, trade, etc. Which at the same time the States can create Intergovernmental Organizations, thus creating a regime. Norms, rules, institutions, etc.

So, such treaties that cover a certain type of issues can have an Intergovernmental Organization, like the UN, WTO, the ICC, that at the same time in order to solve the problems within such treaties and institutions, another type of sub-institution is created in order to solve possible problems, that is a standing Court or an ad hoc Tribunal.

With that in mind it becomes particularly difficult in order to keep the pieces of the puzzle together, at least for the states and in reference to whether or not we have a system in international law, such blunt reality takes as to consider that the states as the treaty or law generators have the agenda to solve some parts of the problems, but not all of them, paradoxically trying to push forward in order to have a regime that works and solve pressing problems, at the same time they created regime complexes.

The regime complex that can be identified as the series of norms, institutions, organisms, that deal with different issues but from different points of departures causing a collision between institutions and rules, an example of these are food, water, climate change, etc. Such complexity causes possible collisions in global governance, however, such collisions are also present in the jurisdictional part of international law.

In international dispute settlement, such collisions also are also present, some of the results can be seen as contradictory findings in parallel proceedings, as it was the CMS/Lauder saga or the famous Soft Drinks Case. Where a contradictory finding creates confusion for the users, which may cause an uneven playing field, due to the set of rules put forward by the Countries.

So, the regime complexes that we have referred above, can also happen in trade and commerce, the framework that permits it is the WTO, by allowing to have Free Tade Zones or areas, in such a case, countries can get into Preferential Trade Agreements, like NAFTA or Trade Unions like the European Community.

Let’s take NAFTA as an example, the framework calls for resolving a dispute inter-partes within the framework, however, WTO has expressed that it cannot renounce to its jurisdiction, as it was with the soft Drinks Case, in this case, you have the same set of  facts, but litigated at the same time in NAFTA and WTO, thus having parallel proceedings, the cause was the tax imposed by the mexican government to drinks sweetened with high-fructose corn syrup, such element can be identified as a jurisdictional regime complex, that deploys the jurisdiction of two or more Courts and Tribunals, causing them to retain jurisdiction, since it is a mandate.

So if the States do not show any will to avoid the problems of such parallel proceedings,  the other actors are the parties, however they will navigate and take the advantages to defend or attack, so the last resort is within the international judges and arbitrators, so they are the glue that keeps the international law together, given the rudimentariness of the international legal system.