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THE ROLE OF THE INTERNATIONAL COURT OF JUSTICE IN A CONTEXT OF FRAGMENTATION

Published online by Cambridge University Press:  31 October 2013

Andrew Lang
Andrew Lang*
Affiliation:
Reader in Law, London School of Economics, a.lang@lse.ac.uk.
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Abstract

Over a decade ago, an important debate began concerning the proper role of the International Court of Justice (ICJ) in an international legal universe characterized by a large and rapidly increasing number of specialized courts and tribunals. What functions can and should the Court perform in response to the fragmentation of international law, and the proliferation of international tribunals? Initial proposals, especially those emerging in the late 1990s, were hierarchical and centralist in their orientation, and have justifiably fallen out of favour. This article uses the current international legal disputes about Australia's plain packaging tobacco legislation as the basis for an exploration of the possibilities for an alternative, non-centralist vision for the ICJ, which is sensitive both to the institutional limits of the international judiciary, and to the benefits of a fundamentally pluralist international legal order.

Keywords

advisory opinionsfragmentationInternational Court of Justiceinternational courts and tribunalsplain packagingpublic international lawtobacco control
Type
Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 4 , October 2013 , pp. 777 - 812
Copyright
Copyright © British Institute of International and Comparative Law 2013 

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References

1 As has been chronicled by Treves, a number of proposals to expand the advisory jurisdiction of the ICJ already had a long pedigree in international legal scholarship well before they were mentioned again in the context of the recent fragmentation literature: Treves, T, ‘Advisory Opinions of the International Court of Justice on Questions Raised by Other International Tribunals’ (2000) MaxPlanckYrbkUNL 215, 217–20Google Scholar. See, eg, Schwebel, SM, ‘Widening the Advisory Jurisdiction of the International Court of Justice without Amending Its Statute’ (1984) 33 CathULRev 355Google Scholar; Schwebel, SM, ‘Authorizing the Secretary-General of the United Nations to Request Advisory Opinions of the International Court of Justice’ (1984) 78(4) AJIL 869Google Scholar; Schwebel, SM, ‘Preliminary Rulings by the International Court of Justice at the Instance of National Courts’ (1988) 28 VaJIntlL 495Google Scholar; Jennings, R, ‘The Role and Functioning of the Court’ (1991) 46 International Court of Justice Yearbook 205Google Scholar; Jennings, R, ‘The Role and Functioning of the Court’ (1992) 47 International Court of Justice Yearbook 249Google Scholar; Sohn, LB, ‘Broadening the Advisory Jurisdiction of the International Court of Justice’ (1983) 77(1) AJIL 124CrossRefGoogle Scholar; Gross, L, ‘The International Court of Justice: Consideration of Requirements for Enhancing Its Role in the International Legal Order’ (1971) 65(2) AJIL 253CrossRefGoogle Scholar; Szasz, P, ‘Enhancing the Advisory Competence of the World Court’ in The Future of the International Court of Justice (1976) 499Google Scholar; Pinto, MCW, ‘The Court and Other International Tribunals: Presentation by Mr M.C.W. Pinto’ in Increasing the Effectiveness of the International Court of Justice (Martinus Nijhoff 1997) 281, 294Google Scholar; Jenks, CW, The Prospects of International Adjudication (Stevens 1964)Google Scholar.

2 See, eg, Report of SM Schwebel, President of the International Court of Justice, UN GAOR, 54th Sess., Agenda Item 13, at 3–4, UN Doc A/54/PV.39 (1999); Report of G Guillaume, President of the International Court of Justice, UN GAOR, 55th Sess., Agenda Item 13, at 7, UN Doc A/55/PV.42 (2000); Schwebel, SM, ‘Fifty Years of the World Court: A Critical Appraisal’ (1996) 90 ASILPROC 339Google Scholar; Guillaume, G, ‘The Future of International Judicial Institutions’ (1995) 44(4) ICLQ 848CrossRefGoogle Scholar; see also Dupuy, P-M, ‘The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice’ (1999) 31 NYUJIntlL&Pol 791Google Scholar, 798–801.

3 Abi-Saab, G, ‘Fragmentation or Unification: Some Concluding Remarks’ (1998) 31 NYU J Int'l L & Pol 919Google Scholar; Dupuy (n 2) eg 804; Dupuy, P-M, ‘The Unity of Application of International Law at the Global Level and the Responsibility of Judges’ (2007) 1(2) European Journal of Legal StudiesGoogle Scholar, online: <http://www.ejls.eu/2/21UK.htm>; Charney, JI, ‘The Impact on the International Legal System of the Growth of International Courts and Tribunals’ (1999) 31 NYUJIntlL&Pol 697Google Scholar, 707–8; Simma, B, ‘Universality of International Law from the Perspective of a Practitioner’ (2009) 20(2) EJIL 265CrossRefGoogle Scholar.

4 Reisman, WM, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (Duke University Press 1992)Google Scholar; Higgins, R, ‘The ICJ, the ECJ, and the Integrity of International Law’ (2003) 52(1) ICLQ 1CrossRefGoogle Scholar; Higgins, R, ‘A Babel of Judicial Voices? Ruminations from the Bench’ (2006) 55(4) ICLQ 791CrossRefGoogle Scholar; Higgins, R, ‘Respecting Sovereign States and Running a Tight Courtroom’ (2001) 50(1) ICLQ 121CrossRefGoogle Scholar; Oellers-Frahm, K., ‘Multiplication of International Courts and Tribunals and Conflicting Jurisdiction: Problems and Possible Solutions’ (2001) 5 MaxPlanckYrbkUNL 67Google Scholar.

5 Report of the Study Group of the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, 13 April 2006, A/CN.4/L.682, para 13.

6 Maduro, MP, ‘Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism’ (2007) 1(2) European Journal of Legal StudiesGoogle Scholar online at <http://www.ejls.eu/2/25UK.htm>.

7 See Australian Government, Tobacco Plain Packaging Act 2011, available at <http://www.comlaw.gov.au/Details/C2011A00148>.

8 For a helpful summary of the arguments and evidence, see Cancer Council Victoria, Plain Packaging of Tobacco Products: A Review of the Evidence (2011) available at <http://www.cancervic.org.au/downloads/mini_sites/Plain-facts/TCUCCVEvOverview_FINALAUG122011.pdf> and the materials cited therein.

9 See, eg, R. J. Reynolds Tobacco Company, Submission to House of Commons Standing Committee on Health Re: Plain Packaging of Tobacco Products 2, 18 (1994) available at <http://www.smoke-free.ca/plain-packaging/documents/1994/industryresponse-1994-canada/Smrm97c00-HIlls.pdf>; also Physicians for Smoke-Free Canada, The Plot Against Plain Packaging (2008) available at <http://www.smoke-free.ca/pdf_1/plotagainstplainpackaging-apr1'.pdf>.

10 See Philip Morris Brand Sàrl, Philip Morris Products S.A., and Abal Hermanos S.A. v

Oriental Republic of Uruguay, ICSID Case No ARB/10/7, see <http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending>. Of course, this legislation is not plain packaging legislation strictly speaking—I cite it to illustrate the trend of legal claims against tobacco packaging legislation generally.

11 See Notice of Claim, 27 June 2011, and Notice of Arbitration, 21 November 2011, available at http://www.ag.gov.au/Internationalrelations/InternationalLaw/Pages/Tobaccoplainpackaging.aspx.

12 See Australia—Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS434, 13 March 2012; WT/DS435, 4 April 2012; WT/DS441, 18 July 2012; WT/DS458, 3 May 2013, Requests for Consultations available at <http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm>.

13 The text of the treaty can be found here: <http://whqlibdoc.who.int/publications/2003/9241591013.pdf>. For an interesting account of the origins of the Framework Convention, see Roemer, R, Taylor, A and Lariviere, J, ‘Origins of the WHO Framework Convention on Tobacco Control’ (2005) 95 American Journal of Public Health 936CrossRefGoogle ScholarPubMed.

14 For an up-to-date list of parties, see <http://www.who.int/fctc/signatories_parties/en/index.html>.

15 See, Guidelines for the Implementation of Article 11 of the WHO Framework Convention on Tobacco Control, Packaging and Labelling of Tobacco Products, Third Session, decision FCTC/COP3(10), 22 November 2008, para 46, available at <http://www.who.int/fctc/guidelines/article_11.pdf>.

16 See, Guidelines for the Implementation of Article 13 of the WHO Framework Convention on Tobacco Control, Conference of the Parties, Third Session, decision FCTC/COP3(12), 22 November 2008, para 17, available at <http://www.who.int/fctc/guidelines/article_13.pdf>.

17 Liberman, for example, notes that ‘[w]hile guidelines are often described as non-legally binding, in contrast to the provisions of the treaty itself, in truth the position is somewhat more complex, with differences in legal implications between sets of guidelines and between elements of each set of guidelines according to the precise language used and its relationship with the text of the treaty. Some elements of the FCTC's guidelines may, for example, be more than simply ‘recommendations’ that Parties adopt measures beyond those that they are legally obliged by the FCTC to implement, but rather constitute ‘subsequent agreement(s) between the parties regarding the interpretation of the treaty or the application of its provisions’; see Liberman, J, ‘Four COPs and Counting: Achievements, Under-Achievements and Looming Challenges in the Early Life of the WHO FCTC Conference of the Parties’ (2011) 21 Tobacco Control 215CrossRefGoogle Scholar.

18 See in particular Pauwelyn's ground-breaking work in this area Pauwelyn, J, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press 2003)CrossRefGoogle Scholar.

19 See WTO Dispute Settlement Understanding, especially Articles 3.2, 11, available at <http://www.wto.org/english/docs_e/legal_e/28-dsu_e.htm>.

20 Appellate Body Report, EC—Measures Concerning Meat and Meat Products (adopted 13 February 1998) WT/DS26/AB/R and WT/DS48/AB/R, paras 120–125; Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products (21 November 2006) WT/DS291–3/R, paras 7.88–7.89.

21 Appellate Body Report, Mexico—Tax Measures on Soft Drinks and other Beverages (adopted 24 March 2006) WT/DS308/AB/R, para 56.

22 One issue that may arise is whether the FCTC (to which China became a party in 2005) applies in the context of a dispute brought under a treaty signed by pre-integration Hong Kong.

23 The Panel in EC—Biotech famously stated that: ‘it makes sense to interpret [VCLT] Article 31(3)(c) as requiring consideration of those rules of international law which are applicable in the relations between all parties to the treaty which is being interpreted’, thus significantly narrowing the operation of the principle of harmonious interpretation in WTO dispute settlement: Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products (21 November 2006) WT/DS291–3/R, para 7.70. However, the Appellate Body subsequently took a different line, noting that while one must always ‘exercise caution’ in using a treaty to which not all WTO Members are parties as an aid to the interpretation of WTO law, nevertheless it may sometimes be appropriate to do so in order to give effect to the principle of harmonious interpretation: European Communities—Measures Affecting Large Civil Aircraft (18 May 2011), WT/DS316/AB/R, para 845. Interestingly, there is in my view a strong case to be made that the FCTC fits within the narrow parameters set out by the Appellate Body in EC—Aircraft, given the very large number of parties to the FCTC, the high degree of overlap between Members of the WTO and the parties to the FCTC, the fact that both states which have so far brought complaints against Australia's plain packaging laws are parties to the FCTC, and ample textual support for a ‘harmonious’ interpretation of the TRIPS and TBT agreements vis-à-vis the FCTC.

24 It is important to note that the WHO could in principle formulate its questions in much broader terms. In particular, it could in fact ask the ICJ to address precisely the same legal questions as addressed by the trade and investment tribunals, having to do with the substantive interpretation of various aspects of trade and investment law. There is an interesting debate to be had as to whether that would be desirable, but I have deliberately refrained from considering this possibility because in my view such a broadening of the question would raise much more difficult questions as regards the proper scope of the Court's advisory jurisdiction, and its discretion not to exercise that jurisdiction.

25 See Roemer, Taylor and Lariviere (n 13) 936.

26 I am indebted to various members of the WHO Secretariat for this point.

27 Rules of Procedure of the World Health Assembly, Rules 70 and 71, available at <http://www.who.int/governance/rules_of_procedure_of_the_wha_en.pdf>. To the author's knowledge, no formal decision has been made whether or not a request for an advisory opinion ‘important question’ subject to the two-thirds majority requirement of Rule 70. In the absence of such a decision, it seems safer to assume that supermajority requirement does apply. As regards the same issue in the UNGA, see Szasz (n 1) 504; Blaine Sloan, F, ‘Advisory Jurisdiction of the International Court of Justice’ (1950) 38(5) CalLRev 830Google Scholar, 838.

28 See, for one example of this common argument, Oellers-Frahm (n 4) 92 ff.

29 Szasz (n 1) 522.

30 I acknowledge that I make the argument below that the ICJ is unlikely in practice to deliver on this promise of greater legal certainty—but, of course, not all will agree with this assessment.

31 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 (I) (‘Legality of Nuclear Weapons (I)’).

32 The principal objective of the WHO, as set out in Article 1 of its Constitution ‘shall be the attainment by all peoples of the highest possible levels of health’. Art 2 then sets out 22 ‘functions’, which the WHO may undertake in order to achieve that objective. These include, most relevantly:

  1. (a)

    (a) to act as the directing and co-ordinating authority on international health work;

  2. (b)

    (b) to establish and maintain effective collaboration with the United Nations, specialised agencies, governmental health administrations, professional groups and such other organizations as may be deemed appropriate;

  3. (c)

    (c) to assist Governments, upon request, in strengthening health services;

  4. (d)

    (d) to furnish appropriate technical assistance and, in emergencies, necessary aid upon the request or acceptance of Governments;

    …

  5. (k)

    (k) to propose conventions, agreements and regulations, and make recommendations with respect to international health matters and to perform such duties as may be assigned thereby to the Organization and are consistent with its objective;

    …

  6. (u)

    (u) to develop, establish and promote international standards with respect to food, biological, pharmaceutical and similar products;

  7. (v)

    (v) generally to take all necessary action to attain the objective of the Organization.

In interpreting these provisions, it should be remembered that, while an international organization ‘only has the functions bestowed upon it by [its Constitution] with a view to the fulfilment of [its given] purpose, … it has power to exercise those functions to their full extent, in so far as the Statute does not impose restrictions on it’: Jurisdiction of the European Commission of the Danube, Advisory Opinion, PCIJ, Ser. B. No. 14 at 64; Legality of Nuclear Weapons (I) para 25.

33 Reservations to the Genocide Convention, 19–20.

34 Legality of Nuclear Weapons (I) paras 21–22.

35 For a persuasive and critical response to this part of the judgment, see Akande, D, ‘The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice’ (1998) 9 EurJIntL 437–467Google Scholar esp 443–52.

36 Legality of Nuclear Weapons (I) para 25.

37 Legality of Nuclear Weapons (I) para 26.

38 Legality of Nuclear Weapons (I) para 26 (emphasis added).

39 Legality of Nuclear Weapons (I) para 26.

40 See ‘Arrangements for Effective Cooperation with Other Intergovernmental Organizations: Relations between the WTO and the United Nations’, WTO document WT/GC/W/10, 15 November 1995, which attaches an exchange of letters between the WTO DG and the UNSG.

41 See the Dissenting Opinion of Judge Weeramantry in Legality of Nuclear Weapons (I) 149–151 for a clear statement of this position; also Akande (n 35) 449–50.

42 For a useful summary of the collaborative work which has occurred so far between the WTO and the WHO, see <http://www.wto.org/english/thewto_e/coher_e/wto_who_e.htm>, and the reports referred to therein.

43 Young provides an interesting account of this dynamic in her discussion of fisheries subsidies negotiations in Young, MA, ‘Fragmentation or Interaction: The WTO, Fisheries Subsidies, and International Law’ (2009) 8(4) World Trade Review 477CrossRefGoogle ScholarPubMed. Any number of other illustrations could be offered.

44 Kingsbury, B, ‘Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem’ (1998) 31 NYUJIntlL&Pol 679Google Scholar; Simma (n 3); Simma, B, ‘Fragmentation in a Positive Light’ (2004) 25 MichJIntlL 845Google Scholar; Dupuy (n 2).

45 That Article states, most relevantly: ‘When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding’; see <http://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm#23>.

46 See, eg, Appellate Body Report, EC Measures Concerning Meat and Meat Products (16 January 1998, adopted 13 February 1998) WT/DS26/AB/R and WT/DS48/AB/R , para 123, n 93 (on the precautionary principle); Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products (29 September 2006, adopted 21 November 2006) WT/DS291–3/R, nn261, 262 (on the precautionary principle); Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products (12 October 1998, adopted 6 November 1998) WT/DS58/AB/R, para 158, n 156 (on principle of good faith); Panel Report, Turkey—Restrictions on Imports of Textile and Clothing Products (31 May 1999, adopted 19 November 1999) WT/DS34/R, 9.42, n 275 (on state responsibility).

47 See generally Young, MA, ‘The WTO's Use of Relevant Rules of International Law: An Analysis of the Biotech Case’ (2007) 56 ICLQ 907Google Scholar.

48 See, for an elaboration of this argument, Lang, A, World Trade after Neoliberalism (OUP 2011)Google Scholar especially ch 10.

49 See (n 23).

50 See, eg, Application for Review of Judgement No 273 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1982, para.21; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 (I), para 10; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para 14; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, ICJ Reports 2010, para 19.

51 For the WHO's authority to request an advisory opinion of the ICJ, see Article 76 of Constitution of the World Health Organization, available at <http://apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf>, in combination with Article X:2 of the Agreement of 10 July 1948 between the UN and the World Health Organization.

52 See, eg, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, ICJ Reports 1950, 72; Nuclear Weapons I, para 14; Wall, para 44; Kosovo, para 29.

53 Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No 5, at 29; UNAT 1973, para 24; UNAT 1982, para 22; Wall, para 45; Kosovo, para 29.

54 Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, ICJ Advisory Opinion, 1 February 2012, para 33.

55 Interpretation of Peace Treaties, 71; Wall para 44; Kosovo, para 30.

56 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the UNESCO, Advisory Opinion, ICJ Reports 1956, 86; Wall, para 44; Kosovo para 30.

57 See, eg, General Assembly Resolution 43/51, Annex para 15 (5 December 1988).

58 This summary of the core elements of the Eastern Carelia case as they have been understood in ICJ judgments is taken from Legality of Nuclear Weapons (II) para 14.

59 Eastern Carelia, 27, 28–29.

60 Western Sahara, para 33.

61 Some instances in which this argument has been run include the Wall, Interpretation of Peace Treaties, and Western Sahara opinions.

62 Interpretation of Peace Treaties, 71–2.

63 Interpretation of Peace Treaties, 72.

64 Western Sahara, para 42.

65 Applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities of the United Nations (‘Mazilu’), Advisory Opinion, ICJ Reports para 38.

66 Western Sahara, paras 34, 38 (emphasis added).

67 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, para 32.

68 Wall, para 49.

69 Wall, para 50 (emphasis added).

70 See below (nn 94–98) and accompanying text.

71 Interpretation of Peace Treaties, 71.

72 Reservations to the Genocide Convention, 20.

73 Mazilu, para 38.

74 Art 23 of the WTO's Dispute Settlement Understanding (n 45). Of course, it is not at all clear that this Article precludes (or even could preclude) the involvement by WTO Members in a request for an advisory opinion from the ICJ on questions of WTO law: Art 23 is addressed to complaining parties only, and it expressly prohibits only ‘unilateral’ determinations of non-compliance with WTO law. Nevertheless, the intent of the drafters that WTO dispute settlement be the exclusive forum for the bringing of complaints under WTO law is clear.

75 For a similar argument see Sloan (n 27) 834. See also generally UN Charter Article 103 (and less relevantly Article XXI(c) of the General Agreement on Tariffs and Trade 1947), which together accord normative priority to Charter arrangements over WTO law to the extent of a conflict.

76 See Reservations to the Genocide Convention, 20. As an aside, we may note the irony which would be involved in the ICJ refusing to trespass on the exclusive territory of the WTO dispute settlement system, based on an interpretation of a treaty to which ex hypothesi WTO tribunals have exclusive jurisdiction authoritatively to interpret.

77 See eg Schwebel (n 2); and Guillaume (n 2).

78 Oellers-Frahm (n 4).

79 See (n 44).

80 The classic examples of this kind of approach would be the Kosovo and Legality of Nuclear Weapons (II) advisory opinions. Relatedly, see Separate Opinion of Judge Petrén in the Nuclear Tests cases, ICJ Reports 1974, 303–6; and the discussion in Koskenniemi (n 86) 615 ff.

81 Koskenniemi, M and Leino, P, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15(3) LJIL 553CrossRefGoogle Scholar.

82 Helfer, LR, ‘Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking’ (2004) 29 YaleJIntL 1Google Scholar.

83 Fischer-Lescano, A and Teubner, G, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2003) 25 MichJIntlL 999Google Scholar.

84 Craven, M, ‘Unity, Diversity and Fragmentation of International Law’ (2003) 14 FinnishYBIL 3Google Scholar.

85 See eg Oellers-Frahm (n 4).

86 Report of the Study Group of the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, 13 April 2006, A/CN.4/L.682, para 484, available at <http://untreaty.un.org/ilc/documentation/english/a_cn4_l682.pdf>. See also generally Koskenniemi, M, ‘Advisory Opinions of the International Court of Justice as an Instrument of Preventive Diplomacy’ in Al-Nauimi, N and Meese, R (eds), International Legal Issues Arising under the United Nations Decade of International Law (Springer 1995) 599, 612–19Google Scholar.

87 Abi-Saab (n 3); Charney (n 3); Koch, CH, ‘Judicial Dialogue for Legal Multiculturalism’ (2004) 25 MichJIntlL 879Google Scholar; Burke-White, W, ‘International Legal Pluralism’ (2004) 25 MichJIntl L 963Google Scholar.

88 The term ‘toolbox’ is taken from Report of the Study Group of the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, 13 April 2006, A/CN.4/L.682, para 20, also 250.

89 Report of the Study Group of the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, 13 April 2006, A/CN.4/L.682, 250.

90 ibid, especially 251.

91 See also Rules of the Court, art 9; and see generally Szasz (n 1) 531.

92 See, eg, the responses that the Court has had in the context of the principle of equality of parties in Judgments of the Administrative Tribunal of the ILO upon complaints made against the UNESCO, Advisory Opinion, ICJ Reports 1956; Application for Review of Judgement No 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1973; Application for Review of Judgement No 273 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1982; Application for Review of Judgement No 333 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1987; Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, ICJ Advisory Opinion, 1 February 2012.

93 See eg Chinkin, C, ‘Increasing the Use and Appeal of the Court: Presentation by Professor Christine Chinkin’ in Increasing the Effectiveness of the International Court of Justice (Martinus Nijhoff 1997) 43Google Scholar.

94 On the practice of the PCIJ in this regard see Szasz (n 1) 507 and the material referred to therein. As regards the ICJ, the flexibility to follow something close to this practice is available under arts 34, 50, and 66 of its Statute.

95 The obvious example is the inability of the ICJ to accept amicus curiae briefs from non-governmental organizations, in contrast to both trade and investment tribunals.

96 See Young (n 43) and Young, MA, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (CUP 2011)CrossRefGoogle Scholar.

97 ibid.

98 See generally on the limits of the perspectives of specialized tribunals, Report of the Study Group of the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, 13 April 2006, A/CN.4/L.682, ILC 254–6; Dupuy (n 3); Shany, Y, The Competing Jurisdictions of International Courts and Tribunals (Oxford University Press 2003)Google Scholar.

99 See generally, Young (n 43) noting in particular the importance of scrutiny of the degree of participation, the transparency of the decision, as well as the quality of its reasoning.

100 Fischer-Lescano and Teubner (n 83).

101 This recalls earlier discussions around the WTO legality of potential labour-related trade sanctions against Myanmar.

102 See generally Young, MA, ‘Fragmentation or Interaction: The WTO, Fisheries Subsidies, and International Law’ (2009) 8(4) World Trade Review 477CrossRefGoogle ScholarPubMed.

103 See the Dissenting Opinion of Judge Weeramantry in Legality of Nuclear Weapons (I) at 150–151 for another useful list of factual situations which may fall at once within the competence of multiple specialized agencies.

104 There is a discussion of the degree to which it is or is not possible for the grant of authority to a Specialised Agency to request advisory opinions to be revoked in Sloan (n 27) 834.

105 On the need for such judicial leadership in the context of fragmentation, see Maduro, MP, ‘Courts and Pluralism: Essay on a Theory of Judicial Adjudication in the Context of Legal and Constitutional Pluralism’ in Dunoff, JL and Trachtman, JP (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (CUP 2009)Google Scholar; Maduro (n 6); Abi-Saab (n 3); Dupuy (n 3).