GoJIL Vol. 12, No. 1 (2022)
Missed Communications and Miscommunications: International Courts, the Fragmentation of International Law and Judicial Dialogue
Francis Maxwell
Abstract
The increase in the number of international judicial bodies has led to different
international courts deciding similar issues of international law. There is the
real possibility that these international judicial bodies, not subject to the
supervision of a common appeal court, may rule differently on similar questions
before them. While this fragmentation of decision-making may undermine the
coherency and certainty of the international legal system, it may in some cases be
in the interests of the international community, including where divergences in
decision-making are the result of specialized regimes or where there is progressive
development of the law. So that fragmentation is limited to what is beneficial
and necessary for the international community, it is essential that international
judicial bodies are in open and structured dialogue with one another. This
analysis considers three scenarios of overlapping decision-making, over the
course of the lives of two sets of international courts: the International Court
of Justice, and the international criminal courts and tribunals. It also considers
the recent decision of the International Criminal Court with respect to Palestine
and the Court’s refusal to weigh in on questions of general international law, in
apparent departure from the previous three examples. It is submitted that these
examples demonstrate that insufficient attention is given by these international
judicial bodies to the issue of judicial dialogue and its importance. This may
undermine the legitimacy of the system and introduce the risks of fragmentation
without its benefits.
Keywords: fragmentation, international law, international court,
international criminal law, judicial dialogue, customary international law
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