Towards Deeper Judicialisation: Explaining Thailand’s Increasing Engagement with International Adjudication

Phil Saengkrai *

Abstract

This paper calls attention to a little-noticed phenomenon: the Thai government’s increasing involvement in international adjudication over the last two decades. For the first time, it has participated in the advisory proceedings before the ITLOS and made oral statements in the advisory proceedings before the ICJ. It has faced the first treaty-based arbitration by a German investor. There has also been an attempt to initiate proceedings at the International Criminal Court against Thai officials. All of these events parallel the government’s extensive participation in the dispute settlement mechanism of the WTO. What accounts for such developments? The paper argues that Thailand’s constantly increasing engagement with international adjudication should be understood as part of the judicialisation of international relations. Specifically, it is shaped by four main conditions. First, the Thai government has cautiously yet constantly expanded its acceptance of the jurisdiction of courts and tribunals. Second, the number of potential claimants has exponentially increased. Third, the composition of the international litigator communities has changed, resulting in a significant increase in the number of lawyers willing to pursue new cases. Fourth, Thai government officials are learning to strategically make themselves more visible in the litigator communities.

Keywords: International adjudication — Proliferation of international courts and tribunals — Judicialisation — Institutional conditions — Socio-professional conditions

I. INTRODUCTION

The Thai government has been increasingly involved in international adjudication in many fora in the course of the last two decades. For the first time, it has fully participated in the advisory proceedings before the International Tribunal for the Law of the Sea (ITLOS) in 2015 [1] and appeared in the oral phase in the advisory proceedings before the International Court of Justice (ICJ) in 2018. [2] Also for the first time, it was brought to arbitration under an investment treaty by a German company in 2006, [3] which was followed by other similar claims. [4] Additionally, there was an attempt to initiate proceedings at the International Criminal Court (ICC) as a result of the massacre in downtown Bangkok in 2010. [5] All of these events parallel the widely-discussed case concerning the interpretation of the judgment in the Preah Vihear case before the ICJ, [6] and the government’s extensive engagement with the dispute settlement mechanism of the World Trade Organization (WTO) as a claimant, respondent, and third party, which now exceeds 100 cases. [7] What explains such developments?

While there has been episodic attention to some of the cases mentioned above, an overview of the pattern that seemingly emerges remains little noticed by academics and practitioners. In each case, a good analysis of the litigation strategy, the outcome, and the broader implications of each decision requires a highly contextualised, case-specific focus. Yet, it is also illuminating to zoom out and direct attention to the panoramic view of the contemporary landscape of international courts and tribunals to grasp the practice and pattern of the behaviour of the government and other actors. To pave the way for future investigation, this paper seeks to explain the increasing engagement with international adjudication by the Thai government against the backdrop of the contemporary state of international adjudication.

By bringing into conversation two strands of literature, namely “judicialisation of international relations” and sociological approaches to international courts and tribunals, I argue that the Thai government’s increasing engagement with international adjudication over the last two decades has been shaped by four main conditions. First, the Thai government has cautiously but constantly expanded its acceptance of the jurisdiction of international courts and tribunals in recent decades. Second, the jurisdiction ratione personae of the courts and tribunals to which the government has given its consent covers non-state actors, which has resulted in an exponential increase in potential claimants bringing cases against the state in international adjudication. Third, over the last three decades, new litigators, including lawyers in international law firms, have become particularly active in the landscape and have sought new cases, new clients, and innovative procedures. Fourth, Thai government officials, for their part, are learning to strategically make themselves more visible in the international litigator communities. With all of these four conditions present, the further involvement of the Thai government in international adjudication can be expected. The first two conditions will be discussed together in Section 2 as “institutional conditions.” The other two conditions will be treated as “socio-professional conditions” and will be discussed in Section 3.

A few words about the terminology and scope of the present work are in order. Following Cesare Romano, Karen Alter, and Yuval Shany, a group of international legal scholars and political scientists, “international adjudication” in this paper is understood to be concerned with the proceedings before bodies that are:

1. international governmental organizations, or bodies and procedures of international governmental organization, that . . .

2. hear cases when one of the parties is, or could be, a state or an international organization, and that . . .

3. are composed of independent adjudicators, who . . .

4. decide the question(s) brought before them on the basis of international law . . .

5. following pre-determined rules of procedure. [8]

As such, I exclude proceedings before domestic courts in foreign states which involve the Thai government, even though these have increasingly gained practical significance and scholarly interest in many types of cases, such as state immunity, universal criminal jurisdiction, and enforcement of arbitral awards. [9] Similarly excluded is the arbitration against the government based on contractual claims governed by domestic law. With the terms “engagement” and “involvement,” which will be used interchangeably, I limit the scope of analysis to the government’s participation as an applicant/claimant, as a respondent, as a third-party/non-disputing party/intervener in contentious cases, and to its participation in advisory proceedings. I therefore leave out other forms of engagement, such as the nomination of adjudicators, reform projects, etc., even though they are worthy of further exploration in their own right. [10]

II. INSTITUTIONAL CONDITIONS

The causes of the expansion of international adjudication, as well as governments’ involvement in it, are undoubtedly multiple. Legal academics and political scientists tend to focus on what is called the “proliferation of international courts and tribunals.” The term refers to the phenomenon of a sudden increase in the number of new international courts and tribunals after the end of the Cold War in different fields of international law, which has completely altered the landscape of international adjudication. [11] Among the well-known ones are the ITLOS under the United Nations Convention on the Law of the Sea (Law of the Sea Convention), two ad hoc criminal tribunals for former Yugoslavia and Rwanda created by the Security Council of the United Nations, the ICC, the dispute settlement mechanisms of the WTO, and hundreds of ad hoc tribunals established in the explosion of cases before investor-state arbitration being brought under investment treaties. In the same period, older institutions such as the ICJ and the Permanent Court of Arbitration, which administer international arbitration, have seen a remarkable rise in their caseload. In the case of the ICJ, for example, while there were 13 contentious cases brought before the Court in the 1980s, the number leaped to 36 cases in the 1990s (including 10 cases initiated simultaneously by Yugoslavia against separate NATO members). This was followed by 24 cases in the 2000s, and 30 cases in the 2010s, which has made the World Court busier than ever. Third-party dispute settlement in international relations has traditionally been an exception to the rule, but today, in some issue-areas, it has morphed into a default option.

How then should one account for the increase in a government’s involvement in international adjudication? Intrigued by the proliferation of international courts and tribunals, political scientists have pursued an effort in theorising under the rubric “the judicialisation of international relations.” [12] This strand of works has focused on the questions as to why, and under which circumstances, states delegate their authority to adjudicatory bodies, and the questions about the many roles of international courts and tribunals. [13] To my mind, the most illuminating theoretical framework is that which has recently been developed jointly by Karen Alter, Emilie Hafner-Burton, and Laurence Helfer in a multidisciplinary project by international legal academic and International Relations scholars. [14]

The theory developed by Alter, Hafner-Burton, and Helfer is concerned with the extent to which international adjudication has shaped politics and policy-making processes at the domestic and international levels. It first clarifies that an adjudicatory body that can contribute to the judicialisation of international relations must possess certain qualifications. There are four: first, it must have the formal authority to decide concrete legal disputes between contesting parties; second, it must be an independent decision-maker that applies pre-existing rules and procedures to review facts, evidence, and legal claims; third, it must provide authoritative determinations of violations of law, which are either binding or non-binding; and fourth, it must provide an order or recommendation of actions to remedy legal violations and prevent their repetition. The theory then discusses two cumulative preconditions for the process of judicialisation to occur: first, delegation of power to an adjudicatory body charged with applying legal rules, and second, legal rights-claiming by actors who bring or threaten to bring a complaint to an adjudicatory body. In this theoretical framework, the process involves multiple groups of actors including non-state actors, and therefore, governments or state officials do not, or indeed cannot, have full control over the time, nature, or extent to which political and policy decisions are adjudicated. The main component of the theory provides the model and the steps in which the process of judicialisation occurs, but, for the purpose of this paper, only the two preconditions for judicialsation, delegation of power and rights-claiming actors, will be of relevance for the discussion. Their insight will be brought to bear upon the analysis of Thailand’s increasing engagement with international adjudication as part of the broader phenomenon on a global scale.

A. Increasing Acceptance of Jurisdiction

The first condition about the acceptance of the power of courts is an obvious point of departure from the perspective of the international legal system. As a matter of international law, contentious jurisdiction of courts or arbitral tribunals is consensual; that is, the existence and the extent of the jurisdiction of international courts and tribunals depend upon the consent of the relevant states, international organisations, or other actors. [15] In a contentious case, the consent of the parties to that case confers upon the court the jurisdiction to hear and decide the case. In advisory proceedings, the jurisdiction is derived from the statute and other relevant treaties. There thus exists no compulsory jurisdiction as generally understood in domestic legal systems. The proliferation of international courts and tribunals in the 1990s has not changed this foundational principle. Therefore, for international adjudicatory bodies to have and exercise jurisdiction, states must, in the terms familiar to IR scholars, delegate the power to them by virtue of consent.

Yet, experience has shown that courts and tribunals have at times expanded the scope of their jurisdiction with the opposition of some states. The legal argument that courts and tribunals have employed to support such a move is the kompetenz-kompetenz principle, according to which it is the court itself that has the competence to definitively determine the existence and scope of its jurisdiction. [16] In other words, the final say lies with the court, and not with the states or any other actors. A recent example of a court’s tendency to expand its jurisdiction is the ongoing debate about the relationship between the International Criminal Court and the non-state parties to the Rome Statute. [17] For instance, in the Bangladesh/Myanmar situation, the Pre-Trial Chamber has laid down a relatively low threshold for the existence of the ICC’s jurisdiction ratione loci, as follows: “provided that part of the actus reus takes place within the territory of a State Party, the Court may thus exercise territorial jurisdiction within the limits prescribed by customary international law.” [18] This pronouncement has been invoked as a ground to request the Prosecutor to investigate the alleged crimes of deportation committed by Chinese officials against the Uighur people in the territories of the parties to the Rome Statute such as Tajikistan and Cambodia, notwithstanding the fact that China has not even signed the Statute. [19]

The Thai government, on the whole, has been cautiously yet constantly expanding its consent to the jurisdiction of international courts and tribunals in different fields. There has been a noticeable trend towards more acceptance over the last three decades, albeit with some unevenness, before one witnesses the increasing involvement in adjudication. This cautious attitude can be clearly observed in relation to the ICJ and ICC. In the case of the International Court of Justice, the Thai government has not declared its unilateral acceptance of compulsory jurisdiction in accordance with Article 36(2) of the Statute. There is also a common practice, which has arisen in recent decades, that, when it becomes a party, Thailand will invariably make a reservation to any compromissory clause in a treaty which provides a ground for recourse to compulsory dispute settlement. [20] In multilateral environmental agreements which allow the parties to opt in to compulsory adjudication, the government has not made such a declaration thus far. [21] One of the main causes for the cautious attitude originates from the ICJ’s judgment in the Preah Vihear case in 1962, which re-opened the dark episodes of colonialism in the region at the height of the Cold War. In that case, the Court held, inter alia, that “the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia,” primarily on the basis that Thailand had long accepted the map produced by the French-Siamese Mixed Delimitation Commission. [22] As rightly observed by the prominent international lawyer Vitit Muntarbhorn, this experience “has been more dramatic and traumatic for the country than any other international legal issue, affecting national pride and sentiments.” [23] Because of that trauma, the judgment “also explains the country’s hesitation towards the ICJ and may have resulted in several reservations entered by Thailand to international treaties, whereby the country does not consent to dispute settlement by the ICJ.” [24] The basis of the ICJ’s jurisdiction in this case was Thailand’s acceptance of the predecessor of the ICJ, the Permanent Court of International Justice, which was renewed under the Statute of the ICJ for a period of ten years from 3 May 1950. [25] As a result of Cambodia’s initiation of proceedings, the Thai government did not renew its acceptance of the ICJ’s jurisdiction. [26] It should be added that such a passive approach to the ICJ’s contentious jurisdiction is not unique to Thailand: it seems common among many Asian countries. [27]

If the Thai government is cautious in accepting the ICJ’s jurisdiction, it has been even more so in the case of the ICC. While the government participated in the Rome Conference to negotiate the ICC Statute, it has neither ratified the Statute nor accepted the ICC’s jurisdiction. After the adoption of the Rome Statute, there have been discussions and deliberations as to whether Thailand should ratify the Statute in numerous fora, including the ad hoc committee in the Parliament. [28] Various concerns have been repeatedly voiced, which include the possible abuse of the proceedings for political purposes, and the immunity of the King as the Commander-in-Chief of the Royal Thai Army. [29] As a result, even though Thailand has signed the Rome Statute, it has not ratified it yet. The debates have recurred from time to time, particularly in relation to the tenacious culture of impunity in the country. [30] And yet there are no noticeable changes in the official position and policy.

The non-acceptance of the jurisdiction of the ICC, nevertheless, may not always exclude the involvement of the states and governments. The ongoing investigation in Afghanistan, for instance, may implicate Thailand. In 2017, the Prosecutor at the ICC requested authorisation from the Pre-Trial Chamber to initiate an investigation into alleged war crimes and crimes against humanity in relation to the armed conflict in Afghanistan, and similar crimes related to that conflict committed in the territory of other parties to the Rome Statute, including acts allegedly committed by US armed forces and members of the Central Intelligence Agency (CIA) such as torture and cruel treatment. The alleged torture and cruel treatment, according to the Prosecutor, were committed in the so-called “CIA black sites” located in various countries which, according to some media reports, include Thailand. In the list of the sites submitted to the ICC, however, the Prosecutor did not include the “Detention Site Green,” reportedly located in Thailand and in operation until the end of 2002, even though it was mentioned in the declassified summary report of the Intelligence Committee of the US Senate in 2014. [31] How the Prosecutor will proceed remains to be seen.

Apart from the ICJ and the ICC, the government has been more willingly accepting of the jurisdiction of international tribunals. In 2011, Thailand finally ratified the Law of the Sea Convention which it signed three decades ago. The Convention provides for the compulsory dispute settlement mechanisms and the advisory jurisdiction of the ITLOS. However, the Thai government retained a measure of caution once again. The government has indicated that, in accordance with Article 298 of UNCLOS, it exempts certain categories of disputes from the dispute settlement mechanism, including disputes relating to sea boundary delimitations or involving historic bays or titles. [32] It has also chosen an arbitral tribunal, not the ITLOS or the ICJ, as the default method of dispute settlement, which will allow it to maintain some control over the selection of arbitrators who will decide cases. [33]

The acceptance of the investor-state arbitration under treaties shows an even more open attitude. Thailand has been concluding investment treaties for several decades, with the understanding that the protection under those treaties, as well as the accompanying investor-state arbitration, would attract more inward foreign direct investment to the country. [34] Nevertheless, according to interviews given by a few officials, the decisions to conclude these treaties in the early decades were not based on any thorough cost-benefit analysis or robust empirical study. [35] After the first arbitral claim brought by a German company under the German-Thai bilateral investment treaty in 2005, which resulted in the victory of the investor, the Thai government has continued to conclude new investment treaties, including free trade agreements. But the policy justification has been modified: now that Thai investors increasingly make investments abroad, the treaties as well as the accompanying arbitration are intended to protect them. “Like many countries,” noted Vilawan Mangklatanakul, the then Director of International Law Development Division of the Department of Treaties and Legal Affairs in 2010, “Thailand has signed a number of [international investment agreements] designed to protect its investors abroad and simultaneously attract investment from abroad into the country by offering an additional layer of protection for foreign investors.” [36] There have been improvements in the drafting of the treaties, too. The 2002 Model BIT was revised in 2013 to give more precision to the wording in the provisions, including those concerning the jurisdiction of the arbitral tribunal. At present, Thailand has concluded 42 bilateral investment treaties and 26 treaties with investment protection provisions, a large number of which are now in force. [37] The so-called “second generation” of investment treaties are more precise and elaborate in their provisions, which demonstrates greater caution and care on the part of the government.

A largely similar attitude can be found in the context of the dispute settlement mechanism in the framework of the WTO. The Thai government joined in the early stages and has participated actively in the proceedings as a claimant, a respondent, and a third party. [38] However, with the currently defunct Appellate Body, the European Union and other members have proposed the multi-party interim appeal arrangement, according to which the members of the WTO may choose to resort to arbitration instead of the Appellate Body. [39] The Thai government has not joined the arrangement yet. The Director-General of the Trade Negotiations Department, Ministry of Commerce, has only expressed support for the reform of the WTO dispute settlement mechanism. [40]

A brief survey of Thailand’s position with regard to the jurisdiction of the ICJ, the ICC, the ITLOS, investor-state arbitration, and the dispute settlement mechanisms in the WTO, as presented above, paints a nuanced picture. The government has been cautious in accepting or expanding the jurisdiction of courts and tribunals, yet on the whole, it is clear that over the last 30 years the move has been to accept more, and not less, jurisdiction. In this period, Thailand has not withdrawn its consent to the jurisdiction of these courts and tribunals.

B. Proliferation of Potential Claimants

As Alter, Hafner-Burton, and Helfer rightly emphasise, the broader consent to jurisdiction alone is not sufficient for judicialisation; there must be right-holders bringing a claim before courts and tribunals. One of the revolutionary aspects in the landscape of international adjudication over the last 30 years has been the exponential proliferation of potential claimants, including non-state actors. While inter-state proceedings are the paradigmatic form of international adjudication in traditional international law textbooks, this has changed significantly in the second half of the twentieth century. Benedict Kingsbury usefully summarises ten types of international adjudicatory bodies as follows: [41]

· Inter-government claims commission (covering certain claims between states, but also allowing claims against the other state from a pre-defined list of grounds);

· Ad hoc inter-state arbitration (providing a traditional method of inter-state dispute settlement by the third party which precedes the establishment of a permanent international court);

· Inter-state arbitration embedded in pre-existing legal institutional structures (typically established under the administration of the Permanent Court of Arbitration);

· Standing international courts (providing the twentieth-century, quintessential example of an international adjudicatory body);

· International criminal courts (trying individuals for commission of international crimes);

· International administrative tribunals (deciding claims brought by officials of international organisations against the organisations);

· Regional human rights courts (allowing an individual whose rights under human rights treaties have allegedly been violated to bring a claim against governments);

· Regional economic integration courts (establishing under the treaty concerning integration of a specific region such as the European Union);

· The WTO dispute settlement system (comprising three-member ad hoc panels and the permanent Appellate Body with the competence to decide the appeal);

· Investment arbitration tribunals (deciding claims brought by foreign investors against the host state in whose territory the investment is made).

To this list, one may add “quasi-judicial bodies” established under human rights treaties, such as the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. Such bodies comprise experts and may, depending upon the state party’s acceptance, receive complaints made by individuals against governments, alleging violations of their protected rights. “All of this,” Kingsbury aptly notes, “has led to a new paradigm of routinised litigation and judicial governance being layered alongside the traditional paradigm of episodic international (inter-state) dispute settlement by tribunals.” [42]

The increasing engagement in international adjudication of governments around the world in different fields can thus be simply explained by the fact that they are brought to the cases to defend their positions by this massive group of new claimants. In other words, states are forced to defend their position; otherwise they will run the risk of losing the case. Compared with the old world of approximately 200 states bringing a case against each other, the new world of international adjudication appears as a dramatic one where a government faces potential claims for monetary damages by thousands of foreign investors, and potential allegations of human rights violations by millions of individuals in their territory or subject to their jurisdiction.

Many of the regimes in which the Thai government has accepted compulsory jurisdiction involve non-state actors. This is crystal clear in investor-state arbitration. Faced with the claims brought by a German investor and an Australian investor, the government did not have many options other than to defend its position in full in the proceedings. As with many countries, the risk of arbitration seems high, simply due to the fact that government officials are not fully aware of investment treaties, their meanings, and their implications for dispute settlement. Vilawan, again, provides a perceptive reflection upon the learning experience after the first investment arbitration:

There are two key possible “pre-dispute pitfalls.” First, government agencies can often lack experience with investment treaty arbitration. Thailand signed the first BIT with Germany in 1961 and many other countries thereafter; yet its first treaty arbitration only arose in 2005. The government officials were not fully well versed with the legal implications of the treaty, let alone the early dispute settlement or litigation under the arbitral rules of procedure. The realisation that an investor could invoke ISDS in a treaty was perhaps not fully appreciated. . . .

Secondly, there might be a lack of an institutionalised dispute-filtering mechanism or liaison unit that could prevent a “problem” related to investment from escalating into a formal investment “dispute.” [43]

This statement was made in 2010, and it is unclear if these issues have since been alleviated to a satisfactory extent. Foreign investors continue to threaten lawsuits, which may arguably include investment-treaty arbitration. Facebook Inc, for instance, has very recently protested against the Thai government’s attempt to prosecute its employees, raising concerns in alarming terms about its ability to “reliably invest in Thailand, including maintaining our office, safeguarding our employees and directly supporting businesses that rely on Facebook.” [44]

The emergence of new potential claimants has also changed the traditional picture of the proceedings between states and the roles of governments. As it stands, many of the inter-state proceedings have been conducted by private persons with the help of the government, pursuing some kind of public-private partnership in adjudication. This is particularly true for the dispute settlement mechanism in the WTO. According to a path-breaking study by Gregory Shaffer in 2003, American and European companies have tried to use the WTO system to enhance their corporate interests. He concludes that the “growing interaction between private enterprises, their lawyers, and U.S. and European public officials in the bringing of most trade claims reflects a trend from predominantly intergovernmental decision-making toward multilevel private litigation strategies involving direct public-private exchange at the national and international levels.” [45] A similar phenomenon can be observed in the Thai government’s participation in the WTO dispute settlement mechanism. Pornchai Danvivathana, a Thai diplomat, insightfully summarises the practice of Thailand as follows:

It should be noted that for Thailand, involvement of the private sector in any dispute is a good indicator of serious damage in real terms. However, it is the government that assesses whether the country and the industries concerned are being deprived respectively of rights and/or benefits accruing under the WTO Agreements. In making an assessment, the government considers whether there is a breach of another Member’s commitments and, based on statistical data, examines whether its exports are impaired as a result of the other Member’s measures. However, if the industries affected by the measures at issue petition the government to initiate a WTO dispute, the filing of a claim before the WTO is more easily justified. [46]

He also reports that in the EC-Sugar case, the Thai Sugar Association has closely cooperated with the Thai government. It sent its representatives to Geneva to discuss the legal, political, and public relations issues with the Thai Permanent Mission both before and after the complaint was formally filed. [47] The eagerness of the Thai private sector to collaborate with the government is also evident in the consultation between Thailand, the Philippines, and the European Community regarding the tariffs on tuna imports. Challenging the EC’s tariffs, the Thai government involved a representative of the Thai Food Processors’ Association, which provided some significant financial support. In the words of the representative of the Association, “[w]hen we saw that there was not enough legal expertise in the ministry, we, the private sector, gathered the funding needed to hire a law firm in Brussels.” [48] As such, even though private persons do not enjoy a formal legal standing in the mechanisms, they can engage with governments, which will bring them into the proceedings before adjudicatory bodies. Some have indeed argued for more engagement of Thai private actors, particularly in sharing the fees for external counsels and experts with the government [49] —the aspect of the phenomenon to which this paper will now turn.

III. SOCIO-PROFESSIONAL CONDITIONS

Institutional conditions alone do not sufficiently explain the rise of judicialisation and the increased involvement of governments in international adjudication. Since an institution tends to entail unintended consequences, for instance, creating a new audience that is not expected at the time of the creation, an analytical net should be cast widely so as to cover such consequences. This insight, inspired by the criticism of the institutional design literature, [50] is particularly illuminating for studying international courts and tribunals. To supplement an analysis of the expansion of consent to jurisdiction and the expansion of potential claimants, attention should be turned towards the communities of litigators who are not only involved in the proceedings before international courts and tribunals, but who also serve to sustain adjudicatory activities. The litigator communities also form part of the larger constituency of courts and tribunals which provides the springboard for the legitimacy and authority of those courts and tribunals. [51] In this sense, the analysis of the judicialisation process should include the community of actors involved in the entire process of adjudication. The sociologist Antoine Vauchez aptly speaks of the “symbiotic relationship” between communities and courts, and rightly observes as follows:

Any analysis of the symbiotic relationship between “international courts” and their “legal communities” should start from the simple yet instrumental fact that international courts are particularly precarious institutions, especially when compared to their national counterparts. Not only do they lack the backing of the state, but they cannot count on the existence of a supranational judicial profession because there is no such thing as a supranational body competent for setting common educational requirements. . . . In other words, newly-built international courts do not mechanically succeed in claiming a “natural” domain of jurisdiction of their own by the mere force of the black letter of the treaties. More often than not, their existence as an “authentic” jurisdiction capable of producing an authoritative body of case law is initially questioned by a variety of groups and professions (such as national scholarships, national supreme courts, and diplomats). [52]

Communities of international litigators comprise diverse roles and multiple actors from different backgrounds. Much will therefore depend upon the specific setting in the court and tribunal in question, even if two courts may share some overlapping litigator communities. Legal scholars have increasingly adopted this insight and have fruitfully studied a wide variety of international courts and tribunals. [53] In what follows, I shall focus on the most salient features in the composition of the international litigator communities from a socio-professional perspective, namely, the multiplication and diversification of counsels and the strategic learning of government officials. These aspects are significant, for if these groups of actors seek more cases, it is likely that international adjudication will increase, which in turn means that it is likely that the government will become more involved.

A. Emergence of Law Firms

Counsels in international adjudication are motivated, to use the distinction drawn by Max Weber, by both material and ideal interests. [54] For them, more jurisdiction and more cases mean more job opportunities, and more job opportunities, in turn, result in more income, more prestige, more sense of accomplishment, and more perception of justice. There is therefore a clear incentive for litigators to seek to expand jurisdiction of courts and tribunals and bring more cases to them.

Traditionally, counsels before the International Court of Justice and inter-state arbitration were almost monopolised by a close-knit group of British barristers and professors based largely in the UK, US, Belgium, France, and Italy. [55] In cases before the ICJ and the inter-state arbitration, the team is typically composed of the government official as an agent and several counsels from both Anglophone and Francophone backgrounds. [56] In 1994, Keith Highet, an experienced counsel before the ICJ, spoke of “the international bar that continues to serve the Court,” which

consists of those international lawyers who have practiced and who continue to practice as oral advocates before the Court, who represent a variety of foreign states other than their own governments, who are well-known to the Judges and Registrar of the Court, who know how things work out in practice, and who understand by experience the difficulties, pitfalls and tricks of the trade. [57]

What is noteworthy from Highet’s statement is not only the rich and unrivalled experience and expertise of this group of international lawyers, but also their reputation in the eyes of the ICJ judges. States appearing before the ICJ therefore have a prudential reason for choosing the counsel from this group of international lawyers to secure the trust of judges. Judge Jennings, the former President, was candid about this. “The judges,” he wrote, “can therefore often make a good guess at the names of leading counsel even before the list of names is provided; and the only question remaining may well be just to learn on which side they will respectively appear.” [58] Such practice and preference for the status quo were already revealed in the Electricité de Beyrouth case in the early years of the ICJ. When the Agent of Lebanon asked the Registrar for a list of potential counsels for the case, part of the Registrar’s reply was the recommendation that Lebanon should seek counsels whose names appear in the judgments in previous cases. [59]

The departure from the small community of international litigators seems to have been initiated with the creation of the Iran-US Claims Tribunal in the wake of the Iran-US crisis in 1980. [60] But it certainly accelerated in the succeeding decade when investor-state arbitration, the dispute settlement proceedings before the WTO, and two ad hoc international criminal tribunals gained currency in the 1990s. With the increase in the number of international courts and tribunals, the social fabric of international lawyers appearing before them has become much more diverse. The most salient aspect in these changes is the increasing role of lawyers from law firms. James Crawford, an academic (and subsequently a judge) with very extensive experience in litigation as a counsel and arbitrator over the last three decades, once pointed out that there was an ongoing “major competition on the Anglophone side between the large law firms and the international lawyers who are professors.” He also admitted he was not certain “that the professors will retain the dominant status that they have enjoyed in the past.” [61] Alain Pellet, another experienced counsel, goes even further in affirming the inevitable role of law firms in international adjudication:

I have some reservation with systematically resorting to law-firms in inter-State cases: it unavoidably and considerably raises the cost of the case and, quite usually, makes the procedure more cumbersome. This said, resorting to a law-firm will be virtually indispensable in two circumstances: first, for very poor States ill-equipped to face rather complex and heavy procedures; second, when the case implies difficult factual or archives researches for which law professors are poorly equipped. [62]

His observation was made in the context of inter-state cases, but it is equally applicable, or indeed even more applicable, to the cases involving private persons. In particular, where the governments of small, developing countries are sued, they will inevitably have to rely upon the legal service of external counsels including lawyers from law firms.

The emergence of law firms has irrevocably altered the dynamic of international adjudication. Most importantly, compared to the “international bar of the ICJ,” lawyers in law firms tend to have more time and resources to seek new clients and new cases. [63] They seem to have more incentive in trying innovative procedures. Investor-state arbitration is the case in point. Major law firms have occupied a significant part of the cases in total. Indeed, it is uncommon for a company or a state to rely upon in-house lawyers alone in investor-state arbitration. In all of the investment cases that involve Thailand, the government has invariably hired external counsels, both foreign and Thai, from law firms, to work alongside government lawyers. With regard to international law firms, the government has hired White & Case in the Walter Bau case, and Arnold & Porter in the Kingsgate case. Both of them are major players in the field. According to one study which collects the number of state-related cases law firms dealt with in 2011, the long list includes Freshfields Bruckhaus Deringer (handling 71 cases), White & Case (handling 32 cases), King & Spalding (handling 27 cases), Curtis Mallet-Prevost (handling 20 cases), Colt & Mosle (handling 20 cases), Sidley Austin (handling 18 cases), Arnold & Porter (handling 17 cases), Crowell & Moring (handling 13 cases), K & L Gates (handling 13 cases), Shearman & Sterling (handling 12 cases), DLA Piper (handling 11 cases), Chadbourne & Parke (handling 11 cases), Cleary Gottlieb Steen & Hamilton (handling at least 10 cases), Appleton & Associates (handling 10 cases and probably more), Foley Hoag (handling 10 cases), Latham & Watkins (handling 10 cases), Hogan Lovells (handling 10 cases), Clyde & Co (handing 10 cases), Norton Rose (handling 10 cases), Salan (handing 9 cases), and Debevoise & Plimpton (handling 9 cases). [64] These law firms maintain the practice of keeping current clients constantly informed of the potential claims to be brought. Some of them also seek to expand their client pool by giving training on international investment law to government officials from developing countries. [65] As one political scientist observes, while law firms were largely absent in the treaty conclusions in the early phase of the field, such as the conclusion of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States in the 1960s, they are now playing an outsize role and occupy a prominent place in the constituency of investor-state arbitration. As such, law firms have brought about the new politics of this type of arbitration, stabilised the institution, and rendered it more difficult for governments to reform or exit. [66]

The attempt of counsels to bring more cases or expand the jurisdiction of courts and tribunals may, on some occasions, go hand in hand with the strategy of the judges or arbitrators. Judges and arbitrators, like counsels, may be motivated by both material and ideal stakes. As such, they may be motivated to enjoy expansive jurisdiction and hear more cases. The Achmea saga is a good illustration of an instance where the counsels’ attempt to bring a case coincides with the arbitrators’ preference in extending jurisdiction. In the Slovak Republic v Achmea BV case in 2018, the Grand Chamber of the Court of Justice of the European Union held that the arbitration clause in the investment treaties between members of the European Union, in casu the Netherlands-Slovakia bilateral investment treaty, violates EU law and is therefore invalid. [67] Yet, new cases continue to be brought under the intra-EU bilateral investment treaties. Several investment tribunals, on their part, have sought to contain the effect of this judgment using a variety of legal techniques, and continue to affirm the jurisdiction to hear and decide the cases. Indeed, there seem to be no (reported) cases where the tribunals followed the Achmea judgment and decline the jurisdiction to hear and decide the investor’s claims. [68] In a very recent decision, for instance, the tribunal held that the Treaty on the Functioning of the European Union and the Greece-Cyprus bilateral investment treaty do not deal with the “same subject-matter” within the meaning of Article 30 of the Vienna Convention on the Law of Treaties, and that therefore the issue of termination of the Greece–Cyprus treaty on the basis of lex posterior does not arise. As a result, the bilateral investment treaty in question is still in force, and the tribunal has jurisdiction to hear the claims. The majority’s view has prompted a strongly worded, but rare, dissent by one arbitrator:

It is not in the interest of investment arbitration to extend jurisdiction where there is none and where there is not even any political or moral reason to do so. This policy only serves to discredit the system of international investment arbitration. The current practice at different levels, including treaties, looking for alternative ISDS systems should provoke a reflection in this regard. [69]

In such cases, the emergence of law firms with their aim to expand jurisdiction and client pool, coupled with the receptive responses of judges or arbitrators, will result in more cases for governments to defend. Nevertheless, as emphasised by the legal theorist Duncan Kennedy, judges are bound both by legal materials such as precedents, legal provisions, etc., and their ideology. [70] Each decision, including the decision whether a court or tribunal has jurisdiction over a certain claim, therefore requires a context-specific analysis, as well as an analysis of any potential pattern of decisions made over time.

B. Strategic Positioning of Government Officials

Some government officials, for their part, may choose to strategically join the international litigator communities. By actively participating in proceedings before international courts and tribunals, they will gain more experience and credibility. [71] This is particularly the case when the government has adopted a clear policy on international adjudication. Nicaragua, for instance, has adopted the recourse to the International Court of Justice as part of its foreign policy after its historic victory in a case against the US in the 1980s. [72] It has appeared eight times as an applicant, five times as a respondent, and one time as an intervener. In these cases, the composition of the team remains largely unchanged. The agent has almost always been Ambassador Carlos Argüello Gómez, a government official of Nicaragua. Since the early years, the list of counsels has often included Paul Reichler (now a partner at a leading international law firm), Abram Chayes (a professor at Harvard Law School who has now passed away), Ian Brownlie (a professor at Oxford University who has now passed away), and Alain Pellet (now emeritus professor at Université Paris Nantere). Over time the team has expanded to include new members. In the words of Pellet, “it is in order to speak of ‘the Team’ in the singular—in spite of its partly changing composition depending on the case at stake: we are used to work [sic] together and have to live with the qualities and defects of colleagues.” [73] Using the repeat player tactic, Ambassador Carlos Argüello Gómez has now become a familiar face to the ICJ judges and earned a measure of their trust.

But Nicaragua’s strategy is rather the exception, not the rule. Thailand has certainly not followed Nicaragua’s path at the ICJ. And yet, the participation of the Thai government in the advisory proceedings of the ITLOS in the Sub-Regional Fisheries Commission (SRFC) case provides an interesting example of the visibility and credibility of the Thai government officials in the litigator community of the ITLOS, similar to Nicaragua’s experience. At first glance, the SRFC advisory opinion seems only remotely related to Thailand. The SRFC is a small international organisation comprising 7 African states. It requested the ITLOS to give an advisory opinion regarding the obligations of states in relation to illegal, unreported, and unregulated (IUU) fishing and the potential responsibility arising therefrom under international law. The questions put to the Tribunal were worded rather broadly. [74] Notwithstanding the abstract questions, it is clear that the Thai government actively participated in the proceedings. It submitted written statements, in both the first and second rounds, and participated in the oral hearing. The oral pleading was given by Ambassador Kriangsak Kittichaisaree, who was then the Executive Director of the Thailand Trade and Economic Office in Taiwan. From the records before the Tribunal, it seems that the government did not secure any external counsels. It is noteworthy that there are not many parties to the Law of the Sea Convention who have participated as fully as Thailand did. While in the first round of written submissions, the Tribunal received statements from 22 parties, 6 organisations, and the SRFC; only 5 parties and the SRFC submitted additional statements in the second round. In the oral proceedings, only 10 parties, the SFRC and 2 other organisations participated. Interestingly, the second written statement of Thailand had as an attachment 60 pages of PowerPoint slides titled “Thailand Implementation in Combating IUU Fishing.” [75] Indeed, the statement began with an overview of the measures that the Thai government has adopted in the “fight against IUU fishing.” [76] The selection of Ambassador Kittichaisaree, as he then was, is noteworthy. He assuredly has expertise in the law of the sea, having written a doctoral dissertation on the topic of maritime delimitation at Cambridge University. [77] He also served as a member of the International Law Commission. [78] After this case, he was elected as a judge of the ITLOS from 2017. His selection as an agent served to increase his visibility and prominence in the litigator community, and added to his earlier experience as an advisor in the “Chaisiri Reffer 2” case. [79]

The Chagos advisory proceedings before the ICJ can be analysed along the same lines. The issue in that case concerned the decolonisation of the British colonies, which does not seem to directly concern Thailand. And yet, the Thai government made oral statements in the hearing. The representative of Thailand was the late Ambassador Virachai Plasai, who secured Professor Alina Miron as a counsel. Ambassador Virachai had already served as the agent of Thailand on the request for interpretation of the Preah Vihear judgment a few years earlier, where he worked together with prominent practitioners. The request came up while Cambodia–Thailand relations were tensely adversarial. In 2008, anti-government protests in Thailand fiercely protested against the government’s acceptance of Cambodia’s listing of the Preah Vihear temple as a UNESCO World Heritage Site, framing the issue as yet another loss of Thai territory. At the same time, the Hun Sen government had to mobilise political support for the 2013 general election. Cambodia’s request to the ICJ has thus been construed as an attempt of the Cambodian government to rally domestic support for the 2013 election. [80] As a response, the Thai government garnered a stellar team of legal counsels: Alain Pellet, a French academic who has appeared before the ICJ more often than any other lawyer in the world; James Crawford, an Australian academic at Cambridge who would subsequently become a judge at the Court; and Donald McRae, a professor with vast experience in the law of the sea, international trade, and investment arbitration. These towering academics are truly from the circle of the “international bar,” in which Ambassador Virachai has immersed himself. They brought with them two younger lawyers: Thomas Grant, a practitioner based at University of Cambridge with extensive in international litigation, and Alina Miron, then a doctoral student under the supervision of Pellet. Through his reappearance at the ICJ, as well as securing Professor Miron, the visibility of Ambassador Virachai in the community of World Court litigators, and in the eyes of the judges, has been enhanced. It should also be added that he was already well known in the WTO litigator community, having regularly been appointed as a panelist in the WTO dispute settlement system. [81]

IV. CONCLUSION

In this paper, I have argued that the increasing engagement with international adjudication of the Thai government over the last two decades is not mere happenstance, but should be understood as part of a broader global phenomenon. Specifically, it is the outcome of four institutional and socio-professional conditions. Firstly, the Thai government has cautiously but constantly expanded its acceptance of jurisdiction of international courts and tribunals in recent decades in different fields. Secondly, there are now many more potential claimants who can bring cases against governments before international courts and tribunals, including those whose jurisdiction the Thai government has accepted; Thailand, like many other countries, is now more exposed to potential claims than before. Thirdly, over the last three decades, new litigants, including in particular international law firms, have become particularly active, seeking new cases and innovative procedures. Finally, government officials are seemingly in the process of learning to build a presence in litigator communities, in order to develop experience and gain reputation. With all of these four conditions present, further involvement of the Thai government in international adjudication can be expected. Therefore, this paper calls attention to the increasing risk of litigation that the government may face in the future.

Incidentally, by drawing upon theories and insights from the literature that has not been developed to capture Thailand’s experience specifically, the paper also aims to show that the government’s increasing involvement with international adjudication is not unique to Thailand. Rather, it is a common and general phenomenon across different continents. The broader aim of the paper is thus to situate the Thai government’s experience in the broader phenomenon of the judicialisation of international relations. By doing so, it is hoped that the paper will prompt further investigation of both theoretical and practical significance. How much have international relations been “judicialised”? How effective are international courts and tribunals? How does international adjudication shape domestic policy-making processes, and what are the sources of its legitimacy? What are the distributive effects of increasing engagement with international adjudication? How does the experience of one country compare to that of other similarly situated countries? Further research, drawing upon multidisciplinary collaboration, will enhance an understanding of this increasingly important topic.

[Date of submission: 01 February 2021; Revision: 24 May 2021; Acceptance: 18 October 2021]