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. This analysis can serve not only to understand international judicial powers, but also to aid in distinguishing international courts from nonjudicial treaty bodies and other international institutions concerned with compliance and dispute settlement. The Article then identifies four specific functions that states have expressly delegated to international courts. These functions are dispute settlement, compliance assessment, enforcement, and legal advice (advisory opinions). There is undoubtedly overlap between these functions and courts may undertake more than one of them, but each court has a dominant function at a given time that shapes the scope and exercise of its powers. A court whose primary purpose is dispute settlement, for example, may exercise powers not appropriate to a court whose function is to enforce international law by determining the guilt or innocence of an individual charged with an international crime, and vice versa. Controversy over a court's utilization of implied and inherent powers may clearly still arise because complex and varied reasons lead states to create international courts. The different reasons may in turn lead the states to have different views about a court's primary purpose or function. 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.
"Form, Function, and the Powers of International Courts,"
Chicago Journal of International Law:
2, Article 8.
Available at: http://chicagounbound.uchicago.edu/cjil/vol9/iss2/8