¹ Manley O. Hudson, The Prospect for International Law for the 21^st Century 437 (Cornell Law Quarterly, 1925).

² Manley O. Hudson, International Tribunals: Past and Future VII (1944).

³ Hudson, supra note 1, at 435.

⁴ I choose the term “adjudicators” to indicate that in referring to “the international judiciary” I mean to include judges of international courts and tribunals, whether permanent or temporary, and also arbitrators, whether they are members of a standing tribunal, such as the Iran-United States Claims Tribunal, or of one-off tribunals, such as the numerous ones hearing treaty-based investment disputes.

⁵ Transcript: Day One of the Roberts Hearings, Wash. Post, Sept. 13, 2005, available at <http://www.washingtonpost.com/wp-dyn/content/article/2005/09/13/Ar2005091300693.html>.

⁶ See Posner, Richard A. The Role of the Judge in the 21^st Century, 86 B. U. L. Rev. 1049, 1054 (2006)Google Scholar.

⁷ Shapiro, Martin, Judges as Liars, 17 Harv. J. L. & Pub. Pol’y 155, 156 (1994)Google Scholar. But see Brian Tamanaha, The Realism of Judge Past and Present, Legal Studies Res. Paper Series, Paper #07-0085 (Jan. 2009) (presenting, in an effort to “dispel the notion that judges are deceptive or deluded about judging,” evidence of judicial statements “for over a century, long before the emergence of the legal realists,” of judges being “remarkably candid about the limitations and uncertainties of law and the complexities of judging”).

⁹ Holmes, Oliver Wendell Jr., The Common Law 1 (1881)Google Scholar. in a later essay, Holmes warned against the “danger” of the “notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct.” Holmes, Oliver Wendell Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897)Google Scholar.

¹⁰ Cardozo, Benjamin N., The Nature of the Legal Process 128 (1921)Google Scholar.

¹¹ Id. at 166.

¹² Gilmore, Grant, The Ages of American Law 77 (1977)Google Scholar, quoted in Posner, Richard, Cardozo: A Study in Reputation 12 (1990)Google Scholar.

¹³ Lindquist, Stefanie A. & Cross, Franc, Empirically Testing Dworkin’s Chain Novel Theory: Studying the Path of Precedent, 80 N. Y. U. L. Rev. 1156, 1205-06 (2005)Google Scholar.

¹⁴ Finley Peter Dunne, Wikipedia, <http://en.wikipedia.org/wiki/Finley_Peter_Dunne> (last visited Mar. 2, 2009).

¹⁵ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (July 8, 1996). of course, under Article 38 of the ICJ Statute, the judgments of international judicial bodies are not themselves sources of international law, but merely subsidiary means for the determination of rules of law, unlike the judgments of municipal judges, at least in common law jurisdictions. See ICJ Statute, Art. 38(1) (“The Court, whose function is to decide in accordance with international law such disputes as are submitted to it . . ..”).

¹⁶ Legality of the Threat or Use of Nuclear Weapons, supra note 15, ¶ 18.

¹⁷ It can be argued, too, that the Court, whose influence is dependent on states accepting its rulings as being persuasive, would be even less inclined to be viewed as exercising legislative powers than would the highest court of a country whose constitutional system grants it very wide powers. This would be especially so considering that since Hudson’s time international law has been substantially fleshed out in treaties and conventions, and that to that extent the scope for judicial development of international law has been narrowed.

¹⁸ See Cardozo, supra note 10 & accompanying text.

¹⁹ Hudson, supra note 1, at 436.

²⁰ Id., at 437.

²¹ Id.

²² Id.

²³ See Ii, Charles H. Brower, The Functions and Limits of Arbitration and Judicial Settlement Under Private and Public International Law, 18 Duke J. Comp. & Int’l L. 259, 266-90 (2008)Google Scholar (surveying early history of state-to-state arbitration and adjudication).

²⁴ See id. at 272-73; see also Treaty Between the United States and Great Britain: Claims, Fisheries, Navigation of the St. Lawrence, & American Lumber on the River St. John; Boundary, U.S.-Gr. Brit., May 8, 1871, 17 Stat. 863.

²⁵ Quoted in Schwebel, Stephen, National Judges and Judges Ad Hoc of the International Court of Justice, 48 Int’l & Comp. L. Q. 889, 889-90 (1999)Google Scholar.

²⁶ SirLauterpacht, Hersch, The Function of Law in the International Community 424 (1933)Google Scholar.

²⁷ See Smith, Adam M. “Judicial Nationalism” in International Law: National Identity and Judicial Autonomy at the ICJ, 40 Tex. Int’l L. J. 197, 210-11 (2005)Google Scholar (citing Samore, William, National Origins v. Impartial Decisions: A Study of World Court Holdings, 34 Chi-Kent L. Rev. 193, 197 (1956))Google Scholar. Some observers suggested that the early evidence from the PCIJ indicated that there might be some partiality involved, since in only one in ten instances did a judge vote in whole or in part against his government’s contentions. Hudson argued, however, that the “mere tabulation of votes” was not persuasive without closer examination of the substance of views behind the votes. Based on his own service on the PCIJ bench, Hudson “concluded that.. . judicial impartiality . . . [was] an established fact.” Id. at 211, nn.92 & 93.

²⁸ See id. at 210-11.

²⁹ R v Sussex Justices, Ex parte McCarthy [1924] 1 Kb 256, 259 (per Hewart, LCJ).

³⁰ Reisman, Michael W. A Judge ‘s Judge: Justice Florentino P. Feliciano ‘s Philosophy of the Judicial Function, in Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano (Charnovitz, Steve, Steger, Debra P. & van den Bossche, Peter, eds. 2005)CrossRefGoogle Scholar.

³¹ See, e.g., Michael C. Dorf The Hidden International Influence in the Supreme Court Decision Barring Executions of the Mentally Retarded, Findlaw.Com (Jun. 26, 2002), available at <http://writ.news.findlaw.com.d-orf/20020626.html> (noting the potential influence of the “Strasbourg Effect”—the consideration of the viewpoints and opinions of European colleagues by Supreme Court justices who regularly attend international judicial conferences with members of the European Court of Human Rights (“ECHR”) and the European Court of Justice (“ECJ”)—on the justices views on the death penalty as applied to the mentally retarded) (last visited Mar. 8, 2009).

³² See Smith, supra note 27, at 224.

³³ See id. at 216-21 (identifying, in a statistical study, at least three potential ways nationality may come to matter in adjudication). First, when judges sit in a case in which their state is a disputing party. Second, when judges vote with their state either for allies or against enemies, measured either along the ideological lines of the Cold War or with attention to “putative allies.” Id. at 220. Finally, nationality could play a role as a decisive vote. After analyzing the voting patterns along these hypotheses, Smith concludes that “by the end of the twentieth century, the finding of the 1960s—that by-and-large, national judges tend to support the interests of their own States—finds support, though its presumed absolute nature is quickly diminishing.” Id. at 216. in Smith’s view, the weakening of the Westphalian model—”the changing nature of nationality, international action, and especially international disputes”—has made citizenship a poor lens through which to analyze the independence of international judges. Id. at 222. But see Calliess, Gralf-Peter, Judicial Independence and Impartiality in International Courts, A Comment on Posner, in International Conflict Resolution (Conferences on New Political Economy 23) 148-49 (Voigt, Stefan, Albert, Max & Schmidtchen, Dieter, eds., 2006)Google Scholar (“True cosmopolitan identities may be found in social systems like the economy, sports, arts, science, even religion, but not in law and politics, which are still mentally stuck in the ‘Westphalian system.’”).

³⁴ See, e.g., Avena and other Mexican Nationals (Mex. v. U.S.), Request for Interpretation of the Judgment of Mar. 31, 2004 (Jan. 19); Application of International Convention on Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Provisional Measures (Oct. 15); Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v. Yugoslavia), 1996 I.C.J. Rep. 595, Preliminary Objections (Jul. 11) & Judgment (Feb. 26); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (Jul. 8). The unanimous opinion in the Romania v. Ukraine continental shelf case of earlier this year is a truly impressive exception. See Maritime Delimitation in the Black Sea (Rom. v. UKr.), Judgment (Feb. 3) (settling Romania’s decades-long row with Ukraine over maritime delimitations, awarding Romania the bulk of the disputed area in the Black Sea shelf). The low-key dispute was forty years old, but became more heated in the mid-1990s, when exploration revealed extensive natural gas reserves and some oil in the area. Au ICJ decisions are available at http://www.ICJ-cij.org/docket/index.php?pl=3&p2=2 (last visited June 25, 2009).

³⁵ See, e.g., Eric A. Posner The Decline of the International Court of Justice, in Voigt, Albert, & Schmidtchen, supra note 33, at 111-42 (arguing that the ICJ is not a court where legal norms are applied in an impartial manner, but rather a political body where the members are like diplomats who vote the interests of their home states, and that especially the main powers—after realizing this fact—became reluctant to make use of the ICJ in terms of international conflict resolution). Posner’s basic argument is that “party judges” (both term and ad hoc) vote their national interests in roughly 90 percent of the cases in which their home state is a party. He theorizes that this happens because the judges are concerned about reelection, the home state is watching their behavior, and since judges are recruited from the “national foreign affairs and international relations elite,” they speculate on future career push beyond the ICJ. Thus, they vote with consideration of their concern for future gratification, or, in the case of authoritarian regimes, possibly even the absence of future sanctions against them. But see Calliess, supra note 33, 145 (noting that, in response to Posner, between 1946 and 1996, twenty-five of the fifty-four ad hoc judges were not of the nationality of the country that had chosen them). Calliess also points out that “the fact that 2 out of 15 up to 17 judges, depending on the number of ad hoc judges, are not impartial, since they vote in favour of their electing-States in 90 per cent of the cases, does not necessarily disqualify the institution of a ‘World Court,’ as such,” and thus, “decisive for the general perception of the impartiality of the ICJ conflict resolution process is, therefore, the voting behaviour of the remaining non-party-affiliated judges rather than that of the party judges.” Id. With respect to this issue, Calliess notes, Posner shows a considerable bias (60-70 percent) of the permanent members of the court in terms of ‘rich vs. poor countries’ as well as ‘democratic vs. authoritarian regimes,’ but Calliess, for a variety of reasons, quarrels with Posner’s application of a methodological individualist approach to the interpretation of these expressed biases, concluding, “I am not convinced by the hypothesis, that e.g. a German member of the ICJ votes in favour of Japan or even France for reasons of rational self-interest, i.e. because his personal independence from the German government is not guaranteed.” Id. at 145-46. Notably, Calliess observes, among other things, that judges may not always have a clear understanding of their home state’s preferences. Id.

³⁶ See Prosecutor’s Request for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09 (Mar. 4, 2009), available at <http://www.icc-cpi.int/iccdocs/doc/doc639096.pdf>.

³⁷ See Marlise Simons, Court Issues Arrest Warrant for Sudan ‘s Leader, N. Y. Times, Mar. 4, 2009, available at <http://www.nytimes.com/2009/03/05/world/africa/05court.html?hp> (explaining that the arrest warrant charges Al-Bashir with five counts of crimes against humanity, including murder, extermination, forcible transfer, torture, and rape). The two counts of war crimes were for attacks against a civilian population and for pillaging.

³⁸ See Organization of the Islamic Conference, Oic Secretary General Strongly Rejects the ICC Indictment against President of the Sudan (Mar. 4, 2009), available at <http://www.oic-oci.org>.

³⁹ See Peter Martell, Warrant Sparks Anger in Khartoum, BBC News, Mar. 4, 2009, available at <http://news.bbc.co.uk/2/hi/africa/7924324.stm>.

⁴⁰ The spokesperson for the Foreign Ministry of Iran, Hassan Qashqavi, offered the official Iranian response, decrying the issuance of the warrant as being “in violation of international laws and a blatant example of discrimination in administration of justice worldwide .... Since the criminal officials of the Zionist regime continue their crimes and atrocities, the silence and inaction of such courts in dealing with such crimes against humanity have defamed such institutions.” See U.N. Dispatch, Bashir ICC Reacts, U.N. Dispatch, Mar. 4, 2009, available at <http://www.undispatch.com/node/7785>.

⁴¹ See Cynthia Johnston, Sudan ‘s Bashir Visits Egypt Despite ICC Warrant, ABC News, Mar. 25, 2009, available at <http://abcnews.go.com/International/wireStory?id=7166869>.

⁴² Egypt signed the Rome Statute on December 26th, 2000 and Eritrea signed on October 7^th, 1998. To date, three states of the Middle East and North Africa region (MENA) are states parties to the Rome Statute—Jordan, Djibouti, and the Comoros Islands—and eleven are signatories (Algeria, Bahrain, Egypt, Iran, Israel, Kuwait, Morocco, Oman, Syria, Uae, and Yemen). See Coalition for the International Criminal Court, URC-Egypt and Eritrea, available at <http://www.iccnow.org> (last visited June 25, 2009).

⁴³ See Reports of the Secretary-General on the Sudan, S.C. Res. 1593, U.N. Scor, 59^th Sess., UN Doc. No. 44/82 (2005).

⁴⁴ See Separate and Partly Dissenting Opinion of Judge Anita Ušacka, ¶ 104, available at <http://www.icc-cpi.int/iccdocs/doc/doc639096.pdf> (last visited Mar. 10, 2009) (“I do not find any evidence which addresses the issue of the locus of control; it is unclear whether such control indeed rested fully with Omar Al-Bashir, or whether it was shared by others such that each person had the power to frustrate the commission of the crime. For this reason, I would decline to find reasonable grounds to believe that Omar Al Bashir was responsible through co-perpetration and instead issue an arrest warrant based only on the mode of liability alleged by the Prosecution, indirect perpetration.”).

⁴⁵ See id. ¶¶ 84 & 86 (concluding that the evidence was sufficient to demonstrate that “possession of genocidal intent is one reasonable inference to be drawn from the available evidence,” and that once this threshold is met, “the Chamber need only examine whether there is also evidence that would conclusively disprove the existence of genocidal intent”).

⁴⁶ Of course, there are other structural constraints, not always immediately considered, that relate more to the daily work of judging than to the ability of states to influence judges. In this respect I observe that international judges frequently are extremely committed, hence busy, people. Judges very well might have individual policy preferences or legal inclinations in their minds before a dispute is brought, but the dynamics of judging on a collegial court means that it is difficult, if not impossible, for collective judicial policies to be formed. As the authors of a two-year study of the international judiciary point out, when a given court’s docket is full, judges lose the leisure time needed to discuss theoretical issues and approaches. Similarly, in those courts with light dockets, where judges might work only part-time, the time for having meetings of the minds is also reduced. of course, the larger the bench of a given court, the more impossible any of this becomes. Thus, the suggestion that courts are capable of formulating grand strategy, let alone grand strategy that is responsive to the prerogatives of particular states, seems a bit far-fetched. As the study authors note, a British international judge told them,

Terris, Daniel, Romano, Cesare P.R. & Swigart, Leigh, The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases, 66-70 (2007)Google Scholar; Loyola-La Legal Studies Paper No. 2007-18, available at <http://ssrn.com/abstract=969035> at 66-70 (last visited Mar. 12, 2009).

⁴⁷ Of course, this does not mean that “politics” do not infect the edifices of international justice, nor that the act of interpreting international law is absolutely freed from any constraints. Scholars have been hard at work articulating the various ways in which international judicial discretion is “constrained” by states. See generally Laurence R. Heifer Why States Create International Tribunals: A Theory of Constrained Independence, in Voigt, Albert & Schmidtchen, supra note 33, at 253-76 (arguing that states use formal, structural, political, and discursive control mechanisms, both before an independent tribunal is established and after it begins operating, to convey to its members the range of judicial outcomes that are “politically tolerable,” so that they may “counter” the “potential for judicial overreaching without abandoning independent international adjudication altogether”); see also Stefan Voigt, Comment on Heifer, at 277-80; See also Tom Ginsburg, International Judicial Lav/making, in Voigt, Albert & Schmidtchen, supra note 33 (arguing that international courts wield interdependent law-making power, meaning they are constrained by the preferences of states and other actors in interpreting international law). As Ginsburg notes, one such control mechanism is “exit,” the ability of states to withdraw from a court’s jurisdiction, as the United States did in response to the Nicaragua case before the ICJ. See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 I.C.J. Rep. 392 (June 27).

Of course, this strategy can only impact future decision-making. As others have pointed out, unlike in the realm of investment treaty arbitration, where such withdrawals of jurisdiction would be very costly for any state, there are no costs involved in states withdrawing their acceptances of jurisdiction in these circumstances, and so they might do so rather casually, while the costs to the tribunal’s reputation might be substantial. Smith, supra note 27, at 228.

⁴⁸ Terris, Romano, & Swigart, supra note 46, at 66-70.

⁴⁹ Id.

⁵⁰ See Smith, supra note 27, at 204, 207-08, nn. 40-41, 60-70 (noting politics of campaigning for a variety of judicial and quasi-judicial bodies). It should also be noted that unlike the ICJ, where separate opinions are allowed and are published, ECJ opinions are only by majority vote. Therefore, EU member states do not know how their judges have voted, thus further insulating the later from influence. See Calliess, supra note 33, at 151.

⁵¹ In these one-off criminal tribunals the role that nationality can play is even further reduced by the fact that no co-national of a judge is likely to come before the tribunal.

⁵² See I/A Court H.R., Trujillo Orom Case, Judgment of Jan. 26, 2000, Series C. No. 64.

⁵³ See Smith, supra note 27, nn. 105-06 (describing jurisprudence of ICTR and ICTY addressing judicial independence).

⁵⁴ See generally, Charnovitz, Steve, Judicial Independence, in The World Trade Organization, International Organizations and International Dispute Settlement: Trends and Prospects (2002)Google Scholar; see also Calliess, supra note 33, at 152 (noting that Appellate Body proceedings are confidential and that opinions expressed in its reports by individuals are anonymous).

⁵⁵ Combs, Nancy, Diplomatic Adjudication, 2 Chic. J. Int’l. L. 267, 271 (2001)Google Scholar.

⁵⁶ Id.

⁵⁷ Ginsburg, supra note 47, at 167-68 (describing the Tribunal as “one of the most prolific international courts ever”). According to Ginsburg, two elements of institutional design were crucial to the Tribunals’ success: (1) its jurisdiction over individual cases, which allowed for a refined jurisprudence that was able to test a variety of principles in diverse settings and cases, thereby enabling more precise and influential rules, and (2) its practice of publishing its awards, which has provided “significant spill-over effects,” namely, providing guidance to future dispute resolvers and to states, who could use the Tribunal’s jurisprudence to coordinate their behavior before disputes arise. In Ginsburg’s assessment, these two elements transformed the Tribunal from “what was essentially a dispute resolution exercise into a source of international law.” Id. at 168.

⁵⁸ Combs, supra note 55, at 273. The same can be said about the Ethiopia-Eritrea Claims Commission, where the combination of a limited remit and a structure guaranteeing decisions not affected by nationality (there are no arbitrators having the nationality of either country) has allowed it to continue to function smoothly, even within a context of persistent mutual enmity of the state parties.

⁵⁹ Nonetheless, some states in Latin America, such as Bolivia and Ecuador, have ignored these potential consequences and have modified the scope of their consent to jurisdiction under the ICSID Convention, or even have gone so far as to denounce that convention and/or bilateral investment treaties (“BITs”). See, e.g., ICSID News Release, Bolivia Submits a Notice under Article 71 of the ICSID Convention, May 16, 2007, available at <http://ICSID.worldbank.org> (“On May 2,2007, the World Bank received a written notice of denunciation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) from the Republic of Bolivia. In accordance with Article 71 of the ICSID Convention, the denunciation will take effect six months after the receipt of Bolivia’s notice, i.e., on November 3, 2007.”). Bolivia also announced plans to revise its twenty-four Bits in three areas—the definition of investment, performance requirements, and dispute resolution—as these various treaties expire. See Bolivia Notifies World Bank of Withdrawal from ICSID, Pursues Bit Revisions, Investment Treaty News, May 9, 2007, available at <http://www.iisd.org/pdf/2007/itn_may9_2007.pdf>; ICSID News Release, Ecuador’s Notification under Article 25(4) of the ICSID Convention, Dec. 5, 2007, available at <http://ICSID.worldbank.org> (“On December 4, 2007, the Secretary-General received a notification under Article 25(4) of the ICSID Convention from the Republic of Ecuador. Pursuant to Article 25(4) of the Convention, a Contracting State may notify the Centre of the class or classes of disputes which the State would or would not consider submitting to the jurisdiction of the Centre. Such notification may be made at the time of ratification, acceptance or approval of the Convention or at any time thereafter.”). Ecuador further distanced itself from ICSID and international arbitration generally in 2008 and 2009. In September 2008, the citizens of Ecuador approved by referendum a new constitution that makes it unconstitutional for the country to submit itself to arbitration outside of Latin America. See Fernando Carbrera Diaz, Ecuador Continues Exit from ICSID, Investment Treaty News, June 5, 2009, available at <http://www.investmenttreatynews.org/cms/news/archive/2009/06/05/ecuador-continues-exIT-from-ICSID.aspx>. Ecuadorian President Rafael Correa announced plans to make his country’s separation from ICSID complete on May 30, 2009, when he stated on a weekly radio program that Ecuador would be denouncing the ICSID Convention and would participate in preparing a regional alternative involving the South American Union (Unasur). Id. Correa referred to ICSID as an “atrocity,” withdrawal from which was necessary for “the liberation of our countries because this [ICSID] signifies colonialism, slavery with respect to transnationals, with respect to Washington, with respect to the World Bank and we cannot tolerate this.” Id.

⁶⁰ The lone exception to this rule appears in Article 25 of the International Chamber of Commerce Arbitration Rules, which provides that “[i]f there be no majority, the Award shall be made by the chairman of the Arbitral Tribunal alone.”

⁶¹ See generally Ginsburg, supra note 47 (arguing that international courts wield interdependent law-making power, meaning they are constrained by the preferences of states and other actors in interpreting international law).

⁶² See generally Charney, Jonathan I. The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea, 909 AJIL 69, 74 (1996)Google Scholar. The fragmentation issue has had perhaps its sharpest public expression in the contretemps between the ICTY and the ICJ over the proper legal criterion for establishing when, in an armed conflict which is prima facie internal, an armed military or paramilitary group may be regarded as acting on behalf of a foreign power. In Tadic, the ICTY examined the ICJ’s and other jurisprudence and decided to depart from the reasoning in the Court’s Nicaragua judgment, Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 I.C.J. Rep. 14, ¶¶ 109-16 (June 27), concluding that the appropriate test was not the “effective control” test employed in the Nicaragua case but an ‘ Overall control “ test. See Prosecutor v. Tadic, Judgement, Case No. IT-94-1-A, A.Ch., July 15, 1999, ¶¶ 115-45. The ICJ responded eight years later in Bosnia Genocide, noting that the ICTY was incorrect in its views. See Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 46 ILM 188, at 403 (Feb. 26).

⁶³ It was considered so pressing in 2000 that a special working group of the International Law Commission was formed to address it. See Report of the Study Group on Fragmentation of International law: Difficulties arising from the Diversification and Expansion of International Law, A/CN.4/L.644 (Jul. 18, 2003), available at <http://untreaty.un.org/ilc/documentation/english/a_cn4_1644.pdf>.

Conflict also has arisen in clashes between competing specialized fields of law, such as the inconsistent treatment of international environmental law by courts interpreting international trade law, as seen in the differing approaches in the GATT dispute settlement panel in its 1994 report on the Tuna/Dolphins disputes. See United States -Restrictions of Imports of Tuna, 33 ILM (1994) 839, EC Measures concerning Meat and Meat Products (Hormones)-AB-1997-4-Report of the Appellate Body, WT/DS26/AB/R, WT/DS48/AB/R, ¶¶ 120-25 (providing the World Trade Organization’s Appellate Body’s subsequent conclusion). While acknowledging that the objective of sustainable development was widely recognized by the GATT Contracting Parties, the 1994 GATT panel opinion observed that the practice under the bilateral and multilateral treaties dealing with the environment could not be taken as practice under the law administered under the GATT regime and therefore could not affect the interpretation of it. The Appellate Body in the Beef Hormones Case held that whatever the status of the “precautionary principle” under environmental law, it had not become binding on the WTO as it had not, in its view, become binding as a rule of customary international law.

Most recently concern has been stoked by the fact that different one-off tribunals in treaty-based investment dispute arbitrations adopted directly conflicting interpretations of the law and even entirely inconsistent findings of fact. A frequently cited instance of such conflict is the Lauder case. See generally, Stephen Schill, The Multilaterialization of International Investment Law (2009) (forthcoming), ch. VILA.

⁶⁴ See generally Linton, Suzannah & Dr.Tiba, Firew Kebede, The International Judge in an Age of Multiple International Courts and Tribunals, 9 Chi. J. Int’l L. 407 (2009)Google Scholar; Shany, Yuval, The Competing Jurisdictions of International Courts and Tribunals (2003)Google Scholar; Buergenthal, Thomas, Proliferation of International Courts and Tribunals: Is it Good or Bad?, 14 Leiden J. Intl L. 267 (2001)Google Scholar; Abi-Saab, Georges, Fragmentation or Unification: Some Concluding Remarks, 31 N.Y.U. J. L. & Pol. 919 (1999)Google Scholar; Charney, Jonathan I. Is International Law Threatened by Multiple International Tribunals?, 217 Recueil Des Cours 101 (1998)Google Scholar; Guillaume, Gilbert, Advantages & Risks of Proliferation: A Blueprint for Action, 2 J. Int’l Crim. Just. 300 (2004)Google Scholar; Hafner, Gerhard, Pros and Cons Ensuing from Fragmentation of International Law, 25 Mich. J. Intl L. 849 (2004)Google Scholar; Kingsbury, Benedict, Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?, 31 N.Y.U. J. L. & Pol. 679 (1999)Google Scholar; Romano, Cesare P.R., The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. L. & Pol. 709 (1999)Google Scholar; Dupuy, Pierre-Marie, The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice, 31 N.Y.U. J. L. & Pol. 790 (1999)Google Scholar; Benvenisti, Eyal & Downs, George W. The Empire’s New Clothes: Political Economy and the Fragmentation of International Law, 60 Stan. L. Rev. 595 (2007)Google Scholar.

⁶⁵ See Linton & Kebede Tiba, supra note 64, at 413 nn.33-34 & accompanying text.

⁶⁶ See Simma, Bruno, Diversity or Cacophony?: New Sources of Norms in International Law, 25 Mich. J. Int’l L. 845 (2004)Google Scholar.

⁶⁷ Higgins, Rosalyn, A Babel of Judicial Voices? Ruminations from the Bench, 55 Int’l & Comp. L. Q. 791 (2006)Google Scholar.

⁶⁸ Lauterpacht, supra note 26, at 424.

⁶⁹ Charney, supra note 62, at 74.

⁷⁰ Id.

⁷¹ Semanza v. Prosecutor, Case No ICTR 97-20-A, Appeals Judgment, at 25 (May 20, 2005) (Shahabuddeen, J., concurring).

⁷² See Koskenniemi, Martti & Leino, Päivi, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden J. Int’l L. 553 (2002)CrossRefGoogle Scholar.

⁷³ See generally supra note 64.

⁷⁴ See Simma, Brano, Fragmentation in a Positive Light, 25 Mich J. Int’l L. 845 (2004)Google Scholar.

⁷⁵ Hudson, supra note 2, at 459.

⁷⁵ Hudson, supra note 2, at 459.