At the end of the nineteenth century, the international community began creating its first tribunals with the establishment of the Permanent Court of Arbitration. Since then, numerous courts and tribunals have been created on the international stage. 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" 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. The Article then identifies four specific functions that states have expressly delegated to international courts. 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.
GW Paper Series
GWU Legal Studies Research Paper No. 542; GWU Law School Public Law Research Paper No. 542
Dinah L. Shelton, Form, Function, and the Powers of International Courts, 9 Chi. J. Int'l L. 537 (2009).