12
tribunals, for example (the Inter-American and the European Courts of Human
Rights), have expanded access to justice to subjects of international law other than
the States. 24 They have done what the ICJ has been unable to do (owing to the
anachronic limitations of its Statute). The many contemporary international tribunals
are responding to an urgent need of the international community as a whole. And the
individual has finally been given access to justice, at the international as well as the
national level.
44.
Specialized international tribunals, such as the European and Inter-American
Courts of Human Rights, and the international criminal tribunals ad hoc for the
Former Yugoslavia and for Rwanda have affirmed universal principles, and the
primacy of humanitarianism over traditional mechanisms of the inter-State
contentious sphere. 25 Their work has been complementary to that of the ICJ (which
has also referred to elementary considerations of humanity), and has contributed to
raising contemporary international contentious matters to a new universalist
dimension, over and above the peaceful solution of international disputes on a
strictly inter-State basis. In this way, they have enriched contemporary public
international law.
45.
The multiplicity of international tribunals is, consequently, an encouraging
phenomenon, offering additional forums for access to justice, and also providing
justice at an international level. Attention should be focused on this healthy
substantive development, which is a reflection of the expansion of the application of
international law in general and of judicial solutions in particular, 26 instead of trying –
as some doctrinaires have attempted – to create an artificial “problem” based on the
traditional concern with the delimitation of jurisdictions. The questions posed by the
co-existence of the international tribunals can be adequately examined in the
dialogue between international judges, and not on the basis of puerile self-assertions
of alleged primacy (of one court over the others).
46.
As I stated recently, in my address, as guest speaker, on the occasion of the
opening of the 2004 judicial year of the European Court of Human Rights (on
January 22, 2004) in the Palais des Droits de l'Homme in Strasbourg):
"This is a point which deserves to be stressed on the present occasion, as in some
international legal circles attention has been diverted in recent years from this
fundamental achievement to the false problem of the so-called `proliferation of
international tribunals'. This narrow-minded, inelegant and derogatory expression simply
misses the key point of the considerable advances of the old ideal of international justice
in the contemporary world. The establishment of new international tribunals is but a
reflection of the way contemporary international law has evolved, and of the current
search for, and construction of, an international community guided by the rule of law and
24
.
A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos
Humanos, Bilbao, Universidad de Deusto, 2001, pp. 9-104; and cf. H. Ascensio, "La notion de juridiction
internationale en question", in La juridictionnalisation du Droit international (Colloque de Lille), Paris, Pédone,
2003, p. 198; J.-P. Cot, "Le monde de la justice internationale", in ibid., pp. 517 y 521; M. Bedjaoui, "La
multiplication des tribunaux internationaux ou la bonne fortune du droit des gens", in ibid., pp. 541-544.
25
.
M. Koskenniemi and P. Leino, "Fragmentation of International Law? Postmodern Anxieties", 15
Leiden Journal of International Law (2002) pp. 576-578. – It may be recalled that, in the M/V Saiga case
(1999), the International Tribunal for the Law of the Sea (ITLS) also evoked basic considerations of humanity;
cf. ITLS, M/V Saiga case (No. 2) (Saint Vincent and the Grenadines v. Guinea), Reports of Judgments,
Advisory Opinions and Orders (1999), paras. 155-156.
26
.
Cf. J.I. Charney, "Is International Law Threatened by Multiple International Tribunals?", 271 Recueil
des Cours de l'Académie de Droit International de La Haye (1998) pp. 116, 121, 125, 135, 347, 351 and 373.