Factors influencing fragmentation and convergence in international courts

TY - CHAP

T1 - Factors influencing fragmentation and convergence in international courts

AU - Webb, Philippa

PY - 2015/1/1

Y1 - 2015/1/1

N2 - I. Introduction International courts are not only deciding cases with common factual patterns, but are also interpreting, applying, and developing the same legal principles. One example is the law on genocide. The International Court of Justice (ICJ) has jurisdiction over state responsibility for genocide pursuant to Article IX of the Genocide Convention. The provisions of the Genocide Convention have also been incorporated almost verbatim into the statutes of the international criminal courts mandated to prosecute individuals. As a result, the Genocide Convention is being interpreted and applied – through the lenses of state responsibility and individual criminal responsibility – by the ICJ, International Criminal Court (ICC), International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR). A study of areas of law where there is a high level of activity by multiple international courts reveals that in most cases similar factual scenarios and similar legal issues are treated in a consistent manner. In other words, the trend is towards convergence, though there are some areas of ‘apparent integration’ where judges attempt to integrate their decisions with those of other courts, but due to differing facts or the misapplication of legal concepts, cracks appear beneath the surface. When one steps back from the detail of specific cases and discrete legal issues, three common themes can be identified which influence the degree of convergence or fragmentation. First, the type of court, including its temporal nature, its function, and the institutional regime it is embedded within (whether the United Nations system or something else) appears to be an important factor in the degree to which judges seek to integrate their decisions with existing jurisprudence. Second, the area of law involved in the case and whether it is governed by treaty or custom, is regularly subject to judicial settlement, or is controversial, has an impact on the degree of flexibility judges have in interpreting and developing the law. Finally, the procedural rules and practices of a court relating to evidence, judgment drafting, and the use of existing case law also affect the degree of fragmentation or convergence.

AB - I. Introduction International courts are not only deciding cases with common factual patterns, but are also interpreting, applying, and developing the same legal principles. One example is the law on genocide. The International Court of Justice (ICJ) has jurisdiction over state responsibility for genocide pursuant to Article IX of the Genocide Convention. The provisions of the Genocide Convention have also been incorporated almost verbatim into the statutes of the international criminal courts mandated to prosecute individuals. As a result, the Genocide Convention is being interpreted and applied – through the lenses of state responsibility and individual criminal responsibility – by the ICJ, International Criminal Court (ICC), International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR). A study of areas of law where there is a high level of activity by multiple international courts reveals that in most cases similar factual scenarios and similar legal issues are treated in a consistent manner. In other words, the trend is towards convergence, though there are some areas of ‘apparent integration’ where judges attempt to integrate their decisions with those of other courts, but due to differing facts or the misapplication of legal concepts, cracks appear beneath the surface. When one steps back from the detail of specific cases and discrete legal issues, three common themes can be identified which influence the degree of convergence or fragmentation. First, the type of court, including its temporal nature, its function, and the institutional regime it is embedded within (whether the United Nations system or something else) appears to be an important factor in the degree to which judges seek to integrate their decisions with existing jurisprudence. Second, the area of law involved in the case and whether it is governed by treaty or custom, is regularly subject to judicial settlement, or is controversial, has an impact on the degree of flexibility judges have in interpreting and developing the law. Finally, the procedural rules and practices of a court relating to evidence, judgment drafting, and the use of existing case law also affect the degree of fragmentation or convergence.

UR - http://www.scopus.com/inward/record.url?scp=84953792315&partnerID=8YFLogxK

U2 - 10.1017/CBO9781139979498.006

DO - 10.1017/CBO9781139979498.006

M3 - Chapter

AN - SCOPUS:84953792315

SN - 9781139979498

SN - 9781107082090

SP - 146

EP - 170

BT - A Farewell to Fragmentation: Reassertion and Convergence in International Law

PB - Cambridge University Press

ER -