Form, Function, and the Powers of International Courts

At the end of the nineteenth century, innovations in technology and design permitted construction of the first skyscrapers in Chicago and led to profound changes in the urban environment. The new possibilities in architecture led to an ongoing debate between functionalists who felt that form must follow function and opponents who believed that design should be constrained only by the laws of physics and the limits of imagination, irrespective of the main purpose or function of the construction.1 About the time Chicago architecture was breaking free of past height limitations, the international community began creating its first tribunals with the establishment of the Permanent Court of Arbitration,2 which emerged from the Hague Peace Conferences of 1899 and 1907, the short-lived Central American Court of Justice (1907-1918), and later the Permanent Court of International Justice ("PCIJ"), predecessor to the current International Court of Justice ("ICJ"). Issues of form and function were also part of discussions about the powers of these new institutions and have remained implicitly or explicitly part of debates about the international judiciary for more than a century.3 While previous scholars have critiqued or supported judicial activism and the independence of international courts,4 and discussed questions of implied or inherent judicial powers,5 there has been little systematic effort to consider these topics in relation to the various specific functions served by different international courts.6 This Article examines the interplay of form, function, and the powers exercised by international courts. It first considers the functions or attributes of any institution that carries the name "court" or "tribunal"7 and reflects upon whether there are powers that must be deemed inherent in such an institution to allow it to fulfill the judicial function, irrespective of limitations placed on the court's jurisdiction or the type of proceedings it conducts.8 This analysis can serve not only to understand international judicial powers, but also to aid in distinguishing international courts from nonjudicial treaty bodies and other international institutions concerned with compliance and dispute settlement. The Article then identifies four specific functions that states have expressly delegated to international courts. These functions are dispute settiement,9 compliance assessment,10 enforcement,11 and legal advice (advisory opinions).12 There is undoubtedly overlap between these functions and courts may undertake more than one of them, but each court has a dominant function at a given time13 that shapes the scope and exercise of its powers. A court whose primary purpose is dispute settlement, for example, may exercise powers not appropriate to a court whose function is to enforce international law by determining the guilt or innocence of an individual charged with an international crime, and vice versa. Controversy over a court's utilization of implied and inherent powers may clearly still arise because complex and varied reasons lead states to create international courts.14 The different reasons may in turn lead the states to have different views about a court's primary purpose or function. The conclusion suggests that courts, litigants, and scholars still may usefully examine any exercise of international judicial powers by considering the function of the court and asking whether the power is one inherent to all courts, expressly conferred on the particular court, or reasonably implied from an express or inherent power. I. THE NATURE, FUNCTION, AND INHERENT POWERS OF A COURT A court is both an independent body that answers legal questions according to principles and rules of law, and the physical place where judicial proceedings occur. The common design of courtrooms and rituals associated with proceedings reflects the specific nature and importance of the administration of justice, with the normally high ceilings and formal decor reflecting and reinforcing the idea of the majesty of the law. …