[IntLawProfessors] Formation of Custom and the Inherent Powers of the Special Tribunal for Lebanon - comment by M. Milanovic

[Matthew Zagor]

An interesting observation by Marko Milanovic about the formation of
custom as espoused in the recent decision (10 November 2010) of the
Special Tribunal for Lebanon (link to case below). An 'unorthodox' (but
different) approach to the formation of custom was also evident in the
Tadic case over which Judge Cassese also presided, as Milanovic
notes. 
 
Formation of Custom and the Inherent Powers of the Special Tribunal for
Lebanon (
http://www.ejiltalk.org/formation-of-custom-and-the-inherent-powers-of-the-special-tribunal-for-lebanon/
)from EJIL: Talk! (
http://www.google.com.au/reader/view/feed/http%3A%2F%2Fwww.ejiltalk.org%2Ffeed%2F?hl=en
)by Marko Milanovic
Yesterday the STL Appeals Chamber issued its first substantive decision
(
http://www.stl-tsl.org/x/file/TheRegistry/Library/CaseFiles/chambers/20101110_CH-AC-2010-02_AC_Decision_EN.pdf
)(h/t Bill Schabas’ blog (
http://humanrightsdoctorate.blogspot.com/2010/11/first-judgment-of-appeals-chamber-at.html
)), penned by Professor Antonio Cassese, who was not only the presiding
judge but also the judge rapporteur in the Chamber. The decision delves
in great detail into the concept of inherent powers of international
courts and tribunals, and is strongly reminiscent of the ICTY Appeals
Chamber’s first decision in Tadic, over which Judge Cassese obviously
also presided.
Expansive invocations of inherent powers have not come without
controversy. The STL decision, although ostensibly dealing with a very
technical matter of the access of a potential suspect to documents in
his case file, is well worth the read on several points of principle. I
was particularly struck by the Appeals Chamber assertion (para. 43 of
the decision) that a rule of customary international law now exists to
the effect that international courts and tribunals possess an inherent
jurisdiction, which confers on each of them the power to determine the
scope of their own jurisdiction (competence de la competence;
Kompetenz-Kompetenz). I was even more struck by how the Appeals Chamber
went on to prove that such a customary rule existed (para. 47):
The extensive practice of international courts and tribunals to make
use of their inherent powers and the lack of any objection by States,
non-state actors or other interested parties evince the existence of a
general rule of international law granting such inherent jurisdiction.
The combination of a string of decisions in this field, coupled with the
implicit acceptance or acquiescence of all the international subjects
concerned, clearly indicates the existence of the practice and opinio
juris necessary for holding that a customary rule of international law
has evolved.
Fantastic, no? Note how custom now apparently equals what tribunals say
is custom, plus lack of objection by anyone else. Note also how the
Appeals Chamber does not refer to state practice and opinio juris, but
to practice pure and simple, as well as to the ‘lack of any objection by
States, non-state actors or other interested parties‘ and the
‘acquiescence of all the international subjects concerned.’ Hardly an
orthodox account of the formation of custom!
 
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