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926 INTERNATIONAL LAW AND POLITICS [Vol. 31:919In a legal order, this is the function of the overarchingprinciples that sustain its normative edifice and keep it together.Of course, specialization means special regimes. Buthowever autonomous and particular these may be, there cannotbe a totally self-contained regime within the legal order. Ifthe special regime is to remain part of the legal order, <strong>some</strong>relationship, however tenuous, must subsist between the two.Otherwise, if all links are severed, the special regime becomesa legal order unto itself—a kind of legal Frankenstein, or Kelsen’s“gang of robbers”—and no longer partakes in the samebasis of legitimacy and formal standards of pertinence.This is true not only for norms but also for the institutionalcomponents of the legal order: the mechanisms andprocedures by which it discharges its functions, includingcourts and tribunals. Complexification creates a need for specializedtribunals to accommodate normative diversificationand specialization. At the same time, it generates a parallelneed, equally important and demanding, for a common understandingand interpretation of the overarching principlesby this widening spectrum of tribunals, in order to keep thesystem together and prevent it from exploding into a multitudeof small particles. This requires, in turn, a certain coordinationor harmonization between the diverse tribunals; inother words, their correlation into a kind of constellation,however loose it may be.The problem is that here, as elsewhere in internationallaw, there is no centralized authority, no judicial power, to underliesuch a constellation. Indeed, in international law everyjudicial organ has its own separate source of legitimization, orlegal empowerment, which invests it with judicial power(whether it be the consent of the parties or, in exceptionalcircumstances, the decision of a constitutionally authorized organ),rather than deriving it from a common, centralized poolthat infuses all courts with judicial power and by the same tokenrelates them to each other.IV.THE WAY FORWARDThe question then becomes: Can there be a “judicial system”without a centralized “judicial power” invested in it, andwith the jurisdiction of its components remaining in generalultimately consensual? I answer in the affirmative. Such a sys-
1999] CONCLUDING REMARKS 927tem can develop through the “cumulative process” of internationallaw, of which custom is the most visible, but not theonly, example. This process would progressively condense andcrystallize the different particles of consensual or authoritativejurisdictional empowerment into a certain structure. 5However, this process depends on the behavior of the relevantlegal actors. These are not only states—whether as litigantsor when creating or referring a case to a tribunal byagreement—but also the courts and tribunals themselves, aswell as organs of international organizations when creatingtribunals in the exercise of their constitutional powers. Theprocess can operate only if these actors are conscious of theobjective (the need for a judicial system and the requirementsof such a development) and if they seize on all opportunitiesto inch the process in this direction.Such opportunities are present “at the creation”—that is,when establishing a new arbitral or judicial organ. As mentionedearlier, on two occasions, a case was introduced beforethe ICJ contesting the validity of a prior arbitral award. Thesecases were introduced as new cases, by virtue of a separate jurisdictionaltitle, other than the one at the basis of the initialarbitration. However, such an appeal can be provided for inthe compromise or compromissory clause that creates or refersto the arbitral tribunal. If such a provision were generalizedin arbitration treaties to the point of becoming a clause destyle, we might reach Professor Scelle’s solution through a processfrom below.More important, from a practical point of view, are theexamples of appeal from the decisions of the Mixed ArbitralTribunals to the PCIJ, and from the decisions of the AdministrativeTribunals of the UN and the ILO to the ICJ, through arequest for an advisory opinion. Considering that much of therecent judicial “proliferation” took place within the UN (thead hoc International Criminal Tribunals), under its auspices(the Law of the Sea Tribunal and the ICC), or within its spe-5. I have argued elsewhere, along the same lines, that international lawhas developed a “legislative process” in the absence of a centralized legislativepower. See Georges Abi-Saab, La coutume dans tous ses états, ou le dilemmedu développement du droit international général dans un monde éclaté, in 1 INTER-NATIONAL LAW AT THE TIME OF ITS CODIFICATION: ESSAYS IN HONOUR OF RO-BERTO AGO 53 (Giuffrè 1987).
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