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920 INTERNATIONAL LAW AND POLITICS [Vol. 31:919strive to demonstrate—in the form of variations on the themeof unity and diversity in law.A. Unity of Legal Thought and Diversity of Legal OrdersWhen we speak of contract, responsibility, or a judicial organ,these terms convey to us, whatever our legal backgrounds,a certain common generic idea (but I insist on “generic”).There is, then, a certain unity or commonality of legal thoughtamong all the inhabitants of the legal universe. But at thesame time, there is also diversity of legal orders. It is alwaysamusing when respectable jurists, including the current Presidentof the International Court of Justice, in order to reachthe conclusion that private contracts with governments can belifted to the international level, argue that they are governedby the principle of pacta sunt servanda, which, they emphaticallyadd, is a principle of international law. But pacta suntservanda is a general principle of law existing in all legal orders.By itself, it does not tell us anything specific about theapplicable law. Such common concepts and general principlesare incarnated and managed in different ways, yieldingdifferent outcomes, in different legal orders.B. Unity of Legal Order and Diversity of TribunalsEvery legal order has its own frontiers that separate itfrom other legal orders, because it has a different basis of legitimacyand different mechanisms for creating, applying, andenforcing its rules. In other words, every legal order generatesand specifies its rules in different ways, with different results,and these rules and procedures ultimately derive their legitimacyfrom the fact of belonging to this legal order. It constitutesa unicum: an entity held together by its own internal cohesiveforces, while remaining separate and distinguishablefrom other legal orders. Yet within each legal order (except,perhaps, for the very primitive ones, which can be assimilatedto unicellular living organisms), there exists a multitude of organscharged with the implementation and application of law,including a diversity of courts and tribunals (the type andnumber of which differing from one legal order to another).
1999] CONCLUDING REMARKS 921C. Diversity of Tribunals and Unity of the Judicial SystemWhat these judicial organs have in common, in spite oftheir diversity, is that they belong to the same legal system andderive their legitimacy and physiognomy from it. Together,they discharge, in that particular order, one of the essentialfunctions of any legal order, namely, the judicial or adjudicativefunction. They thus constitute what is called in municipallaw, at least in civil law jurisdictions, the “judicial system”within the legal order. This concept is the depiction or representationof the “constellation” of courts and tribunals withinthe legal order, a “constellation” that is, by definition, correlated.Even the most independent tribunals within the legalorder, e.g., military tribunals, are defined, in their role and theambit of their jurisdiction, in terms of their relation to the regularcourts structure.II.THE SPECIFICITY OF INTERNATIONAL LAWHow do these three propositions apply to internationallaw? I do not think the first two raise any problems, unlike thethird, for we do not seem to have a “judicial system,” properlyso-called, in international law. Why is this the case?This year of grace 1998 marks the 350th anniversary ofthe Peace of Westphalia, which is commonly considered to bethe turning point in the transmutation of the internationallegal order from a hierarchical to a horizontal structure.While this representation is an obvious simplification, there is<strong>some</strong> truth to it, as being that of the historical event markingthe vindication and generalization of the maxim ejus regio,cujus religio; that is, the formulation, in the ideological languageof the time, of the principle of sovereign equality, accordingto which the prince or the sovereign has the last word,or is the last instance of decision-making at the internationallevel.Having repudiated hierarchical links, sovereigns did notwish to reinstate new instances above themselves that couldbind them without their consent, even in the form of tribunals.Thus, for about two centuries, international adjudicationin the real sense fell in abeyance. The Pope was no longerconsidered the final arbiter, while most of the few cases thatwere chronicled as arbitrations were references by sovereignsin dispute to a third sovereign, as an egalitarian way of seeking
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