International Adjudication vs. Judicial Remedies, Abirami Swaminath

International Adjudication vs. Judicial Remedies, Abirami Swaminath

International Adjudication vs. Judicial Remedies,

Abirami Swaminath


The foremost authority on international law is the International Court of Justice (ICJ). However, the various networks within the United Nations, including the treaties and charters that different nations have signed into, govern many fields of international law before the issue is handed to the ICJ. By becoming a party to the treaty, each State has the obligation to ensure that every person in the State can enjoy the rights set out in the treaty.[1]

The right of individuals to complain about violations of their rights brings true meaning to the provisions laid out in international treaties – namely the core nine international human rights treaties.[2] The implementation of these treaties is governed by their respective treaty bodies that set for international standards of protections of human rights. The treaty itself and the treaty bodies function together as a system dependent on the States’ acceptance of the core human rights provisions and the systematic approach of monitoring set forth by the treaty body.

Lodging a complain under a human rights treaty can be done by individual actors or State parties, or through an inquiry process initiated by the treaty body itself.[3] Treaty bodies’ principal obligations pertain to reviewing periodic reports from States, views adopted regarding individual complains, and general comments to all States about their obligations under the treaty. [4] Treaty bodies do not have any binding effects with their decisions and therefore are not binding upon the states. These observations ought to be taken with a grain of salt in that they are adopted under extreme time pressure, contain imprecise language to keep the measures within the opinion of the consensus, and are sometimes unspecific to be within the word limits.[5] While States parties may disagree with the observations set forth by the treaty bodies and have the right to do so, the principal of good faith necessitates that explain the reasons to not comply with the views of the committee.[6]

Currently, a new fear arises that the specific doctrines espoused by the committees have created subfields within international human rights provisions, that have resulted in a degree of fragmentation.[7] As the disconnect grows between the States and the human rights treaty bodies, so does the disconnect between human rights law in the State and transnational respect of treaties. While there are few instances of genuine fragmentation within the sphere of international law, the risk of incoherence in the development of international law is still a genuine enough threat.[8] In the light of this, there is a greater necessity for a strong judicial dialogue, which is through the ICJ and codification of decisions by treaty bodies within the framework of the International Law Commission.[9]

The willingness of a losing state to comply with the decision made by the ICJ or a treaty body is dependent on several factors – from substantive norms of international law to the importance of maintaining an effective institution of international human rights law.[10]

The diffusion of the international legal system, with the ICJ and treaty bodies, seeks to be decentralized for the purposes of retaining the sovereign rights for the States. However, this comes at the cost of a disparate policy goals when it comes to the progress of international human rights.

[1] OHCHR, The United Nations Human Rights Treaty System, Fact Sheet 30 Rev. 1 (2012),

[2] Id. at 1. (“The International Convention on the Elimination of All Forms of Racial Discrimination; The International Covenant on Economic, Social and Cultural Rights; The International Covenant on Civil and Political Rights; The Convention on the Elimination of All Forms of Discrimination against Women; The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; The Convention on the Rights of the Child; The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; The Convention on the Rights of Persons with Disabilities; The International Convention for the Protection of All Persons from Enforced Disappearance.”)

[3] OHCHR, Complaints about human rights violations: Treaty Bodies,

[4] Nigel Rodley, The International Court of Justice and Human Rights Treaty Bodies, in Adjudicating International Human Rights 12-13 (2015).

[5] Id.

[6] Id.

[7] Phillipa Webb, International Judicial Integration and Fragmentation 147-171 (Oxford University Press, 2013). See also Campbell McLachlan, P.Webb, International Judicial Integration and Fragmentation, 62 Neth. Int’l L. Rev. 207 (2015) (reviewing, Phillipa Webb, International Judicial Integration and Fragmentation (2013)).

[8] Webb, supra note 7 at 227.

[9] Id. at 221.

[10] See Joan E. Donoghue, The Effectiveness of the International Court of Justice, 108 Am. Soc’y Int’l L. 114 (2014) (describing her experience as an ICJ judge in dealing with the efficacy of the decisions that she and her colleague ruled on.).