Opinio Juris

Many thanks again to Monica Hakimi and Larry Helfer for commenting on my essay. I am grateful that they took the time to read and reflect upon it and to write such thoughtful comments for this symposium.

Monica points to two potential dangers of competition in international adjudication: first, that competition “would result in more fragmentation and confusion in the law”; and second, that competition (particularly competition that would result in a proliferation of courts) would decrease the authority of any single court and “that judicial decisions would therefore lose their place of prominence in the international legal process.” Both are important points. With regard to the first, I don’t think incoherence is a necessary consequence of competition, at least in the long-term. As Larry notes in his comments, “permitting litigants to choose among multiple tribunals and review bodies can promote jurisprudential coherence by encouraging jurists to engage in a dialogue over legal rules shared by more than one treaty system.” On the second point, I think the prominence and authoritativeness of particular international courts (and individual jurists) should depend more on their decisions then on their monopoly on decisionmaking. In this regard, competition may, in fact, be more helpful than hurtful, as it may encourage tribunals to decide cases in ways that increase their “authority to make and clarify the law for the international community.” Monica quite rightly points out that much of this discussion is premised on contested views of “what functions international courts should perform.” And I agree with her that, ideally, “the international legal process benefits when courts issue sound and authoritative pronouncements of law,” as they would “help make and clarify the law in an imperfect system that suffers from fragmentation and confusion.” But, as Monica recognizes as well, the ability of international courts to do precisely that is premised on effective controls.

Larry reiterates his view (see Why States Create International Tribunals, a piece co-authored with Anne-Marie Slaughter) that existing control mechanisms are sufficient. In support, he points to evidence that “States are cognizing the jurisdiction of international tribunals in growing numbers and litigating cases before such tribunals with increasing frequency.” I am not convinced that this evidence goes to the issue of the effectiveness of current controls. There are a number of reasons why States may accede to the jurisdiction of international courts (e.g., mimicry, credible commitments, etc.) that have nothing to do with the effectiveness of controls. Indeed, I doubt that States, when making the decision to set up or join a court, think much about control or, at least, not as much as they should. The better gauge is whether States continue to use an established court or whether they continue to delegate to an existing court. On the latter point, Larry points to the new powers conferred by the Treaty of Lisbon on the European Court of Justice to interpret the Charter of Fundamental Rights, as well as Protocol 11 to the European Convention on Human Rights, establishing the compulsory jurisdiction of the European Court of Human Rights over individual applications. I’m not sure, though, that these are good counterexamples. As I briefly note in the essay, “Judicial monopolies may be appropriate in domestic systems and in highly integrated regional systems, such as Europe, where controls may be more effectively wielded” (446). (As a side note, interestingly, two European Member States, Poland and the United Kingdom, demanded and received an exemption from Treaty of Lisbon’s extension of the ECJ’s jurisdiction.) As elaborated in the essay, I am, overall, less sanguine about current controls than Larry.

Larry concludes by raising two broader issues. On the second, calling for “additional empirical research analyzing the effects of different degrees of competition on judicial decision making,” I am in complete agreement. This area is ripe for empirical work, though it may be too early to do some of that work. On the first, suggesting that “before deciding whether existing control mechanisms are inadequate, one first needs a theory of whether judges are in fact exceeding their mandates,” I too am in agreement. Certainly, the types of controls employed in any particular case will depend on the mandate envisioned for that particular court. That does not preclude the use of competition as a control for judges-as-trustees (as well as judges-as-agents), unless one is interested not only in judicial lawmaking (or gap-filling, etc.) but also in a single (monopolistic) judicial lawmaker. In other words, an interest in a more expansive judicial mandate does not preclude competition, in and of itself.

Again, many thanks to Monica, Larry, the Virginia Journal of International Law, and Opinio Juris.

Thanks to Opinio Juris for inviting me to comment on Jacob Cogan’s interesting and thought-provoking paper, Competition and Control in International Adjudication. Jacob’s essay correctly recognizes that a system of controls is essential to the successful operation of the international legal system in general and international tribunals in particular. Controls are necessary, Jacob persuasively argues, because the states that create international tribunals and subject themselves to their jurisdiction benefit from adjudicating disputes before independent judges. Absent such controls, however, there is a risk that some judges will overreach, for example by engaging in various forms of activism or lawmaking, thereby frustrating the interests and objectives of the states that appointed them. The challenge that countries face, therefore, is how to preserve the independence of the international judiciary while providing an incentive for its members “to make rules—both procedural and substantive—that accord with the interests of States” and to curb their otherwise activist tendencies. (p.441) The solution the essay proposes is competitive adjudication—restructuring international adjudication to provide states with greater choice in selecting venues for adjudicating their disputes. Greater choice, Jacob argues, will create a rivalry among international courts and tribunals to attract litigants, thereby cabining judicial excesses. (p.449)

I agree with Jacob that competition is an important mechanism to control the output of international tribunals and, further, that competition can exist without compromising judicial independence. I also concur with the thoughtful analysis that appears in the essay’s conclusion, where Jacob critiques those commentators who argue that competition necessarily promotes incoherence and unpredictability in the international legal system. As I argued in an earlier piece on Forum Shopping for Human Rights, permitting litigants to choose among multiple tribunals and review bodies can promote jurisprudential coherence by encouraging jurists to engage in a dialogue over legal rules shared by more than one treaty system.

I part company with Jacob, however, over his view that there is insufficient competition in the international judicial system as it is currently structured. As Anne Marie Slaughter and I argued in Why States Create International Tribunals, international judges are subject to an diverse array of formal, structural, and political control mechanisms that states, both individually and collectively, can be applied both before a tribunal is created and after it is up and running. Judges also face discursive constraints generated by their participation in a global community of law. (For an illustration of the different types of controls and their operation, see table 3 on p.944) Viewed individually and in combination, these mechanisms—which include forum shopping among tribunals with overlapping jurisdictions—provide ample room for governments to limit judicial overreaching while preserving judicial independence.

Jacob disagrees. He challenges the “assumption that controls on international courts are sufficient and effective.” And he argues further that that “the weaknesses of judicial controls means that States are more likely to avoid courts, abandon them, or disregard their decisions, potentially condemning courts to irrelevance.” (p.415) If true, this would indeed be a serious threat to the international judicial system. But the revealed preferences of states do not support this claim, as the evidence in Why States Create International Tribunals reveals (see pp. 910-17). States are recognizing the jurisdiction of international tribunals in growing numbers and litigating cases before such tribunals with increasing frequency. These trends are especially pronounced for the WTO, the ICC, and human rights tribunals, and to a lesser degree, for regional tribunals whose competence covers trade and economic law. To be sure, not all tribunals have experienced such expansions. The compulsory jurisdiction of the ICJ and ITLOS, for example, has not been widely accepted. And there are also notable examples of backlash against tribunals, many of which Jacob describes in the essay.

Yet there is also striking evidence to the contrary. For example, states have expanded the jurisdiction of the two tribunals that Jacob identifies as immune from competition and therefore at risk of “market failure.” (pp.444-45) The recently-concluded Treaty of Lisbon delegates new powers to the European Court of Justice (ECJ) to interpret the now legally binding Charter of Fundamental Rights of the European Union as well as EU criminal justice agreements. A similar trend is underway in the European human rights regime. Until 1998, the jurisdiction of the European Court of Human Rights (ECHR) was optional. That changed with the ratification of Protocol 11, which made jurisdiction compulsory. Yet by then the ECHR had already significantly expanded the Convention’s rights and freedoms in ways that its founders could not have anticipated. Since making ECHR jurisdiction mandatory, the member states have continued to delegate additional authority to the ECHR by adopting new protocols.

Viewed cumulatively, this evidence suggests that states do not believe that independent international tribunals are “exceed[ing] their mandate[s].” (p.439) For even if Jacob is correct that states have difficulty checking judicial overreaching, they surely can decide not to delegate new powers to tribunals that have allegedly overreached or to voluntarily accept additional mechanisms for litigating disputes internationally.

I’ll conclude by briefly highlighting two broader issues that Jacob’s essay raises. First, before deciding whether existing judicial control mechanisms are inadequate, one first needs a theory of whether judges are in fact exceeding their mandates. Completing contracts, filling gaps, and engaging in judicial lawmaking may be precisely what states want a tribunal to do. For this reason, the very same activities that might be condemned as activism by one court may be welcomed in another. The broader theoretical question is whether international tribunals are the trustees or agents of states, an issue explored in depth in a thoughtful forthcoming article by Karen Alter, Agents or Trustees? International Courts in their Political Context, 14 European Journal of International Relations 33 (2008). Judicial trustees too need controls. But they are likely to be differently designed and differently utilized than the mechanisms used to control agents.

Second, Jacob’s essay highlights the need for additional empirical research analyzing the effects of different degrees of competition on judicial decision making. For example, the availability of multiple venues for adjudicating law of the sea disputes provides a natural experiment for testing some of Jacob’s theories. In such a high competition zone, we should expect the different tribunals and arbitral bodies to converge over time toward substantive standards that more faithfully reflects states’ interests. There are likely to be other empirical examples worth exploring.

In sum, Competition and Control in International Adjudication raises important and timely issues and is a welcome addition to the growing body of scholarship on international tribunals.

Jacob Cogan’s Competition and Control in International Adjudication provides a rich and thought-provoking analysis of the importance of, and options for, maintaining controls over international courts. Jacob argues that existing controls are relatively weak, and that we should encourage competition among courts to fill the gap. Competition, he asserts, will help constrain international judicial power and may lead to more desirable judicial decisions: If one court oversteps its mandate or issues unreasonable decisions, states will take their disputes elsewhere, and the overstepping or unreasonable court will be forced to adjust its practices to attract future business.

Jacob recognizes that it is too early to know for sure whether the proliferation of international courts will result in increased competition among courts, and in better, more reasoned judicial decision-making. I question to what extent it will. In order for market forces to affect judicial decision-making, international actors must have enough “market” information—i.e., information about the differences among courts, and about each court’s strengths and weaknesses—to enable them to choose among courts. Yet, as Jacob acknowledges (pages 429-430), international actors already have trouble tracking and digesting the many pronouncements and decisions of international courts. This problem would only multiply with an increase in the number of courts, and it likely would detract from the competition-enhancing effect of proliferation.

More importantly, any competition-related benefits of proliferation may be outweighed by larger, systemic costs. Specifically, the proliferation of international courts likely would result in more fragmentation and confusion in the law, and in a shift in the functions that courts perform. Different courts no doubt will interpret the same rules differently, and will thereby generate inconsistent claims on what the law is and how it should apply in future cases, in the absence of any final arbiter to resolve those questions. This has already happened to some extent in the context of direction and control responsibility. In Nicaragua v. United States, the ICJ found that, for a state to be responsible for directing or controlling the activities of a non-state actor, the state must exercise “effective control” over the relevant, wrongful acts. Then, in 1999, the ICTY suggested a shift in doctrine—to a more relaxed standard of “overall control.” In 2007, the ICJ held its ground, rejecting the ICTY standard of “overall control” and reiterating its standard of “effective control.” Under Jacob’s theory, the conversation between the ICJ and the ICTY is competition-enhancing. This might be true to the (limited) extent that the mandates of the ICJ and ICTY overlap. But in any event, the conversation results in a lack of coherence on what the law is or how it should apply in future cases.

One might respond to that concern by asserting that this is how the international legal process works. International law develops and evolves based on the myriad of conversations between different international actors. The proliferation of international courts would simply result in an increase in the number of judicial actors (as opposed to, for example, state actors) that participate in that process. But that would reflect a major shift in how international actors perceive and employ international courts. Courts perform two sorts of functions in the international legal process: (1) they resolve the particular disputes before them; and (2) they provide authoritative (even if not dispositive) statements of law for the international community as a whole. Jacob’s proposal for encouraging competition focuses on the first of these functions. Even if competition would make courts more effective in performing that function, however, it likely would undermine their efficacy in performing the second, more systemic function. An increase in the number of courts would mean that any one court would have less authority to make and clarify the law for the international community as a whole, and that judicial decisions would therefore lose their place of prominence in the international legal process. Judicial decisions would increasingly be among the cacophony of voices that together contribute to the evolution and development of law.

Jacob’s piece thus begs the question of what functions international courts should perform. I have mixed views on that question. On the one hand, I believe that the international legal process benefits when courts issue sound and authoritative pronouncements of law. Such pronouncements help make and clarify the law in an imperfect system that often suffers from fragmentation and confusion. On the other hand, the concern that Jacob addresses is a real one: Too often, international courts expand their authority or issue unsound, unreasoned decisions. Indeed, even the most authoritative courts (like the ICJ) seem to perform best when deciding cases (like maritime boundary cases) that are context-specific and that do not invite them to make new law or to resolve contested issues in existing law. In other words, international courts are better at resolving particular disputes than they are at authoritatively making and clarifying the law. Jacob’s proposal thus would focus courts on what they do best. Before we move in that direction, however, I encourage international lawyers to consider whether there are any options for control that enhance both judicial functions—that hold courts in check and improve the quality of their decisions, without undermining their authority to make and clarify the law.

My thanks to Opinio Juris for hosting this online symposium, to the Virginia Journal of International Law for publishing my essay Competition and Control in International Adjudication, and especially to Monica Hakimi and Larry Helfer for commenting.

The essay takes issue with the standard view among international law and international relations scholars that States have sufficient and effective tools to constrain international courts. Like international organizations generally, international courts have minds and interests of their own. As a result, they can be tempted to expand their powers beyond those provided for in their mandates or by informal expectations. At the same time, international courts are protected from external control because of the principle of judicial independence and because of structural constraints on international lawmaking and institutional reform. This combination of weak external control and imperfect self-control provides international courts with opportunities to exceed their mandates. It also makes States more likely not to consent ex ante to the jurisdiction of international courts, to withdraw from the jurisdiction of courts to which jurisdiction they had previously consented, and to disobey judicial decisions. In other words, weak judicial control mechanisms create weak dispute resolution mechanisms. This is not optimal, as the international system needs greater not fewer opportunities for peaceful dispute settlement. In order to strengthen international courts, I argue that we need to think anew about how best to maintain control over them. The answer, though, is not, as some would have it, to decrease judicial independence by increasing direct State control. Instead, the essay argues that increasing competition among international courts will more effectively constrain international judicial power and, consequently, increase the likelihood that States will recognize and accede to international judicial authority. Competition among courts will also lead to better - and perhaps even convergent - decisions. Therefore, in contrast to the received wisdom that international courts, as they proliferate, should be more respectful and deferential to each other, the essay claims that such system-protective doctrines are counterproductive. Instead of striving for uniformity, we should accept and develop a system of competitive adjudication in international law.

As befits an essay, this conclusion is meant to be as much thought-provoking as definitive. And, indeed, it is too early to know for certain if the approach I recommend will succeed, or whether the necessary competitive conditions are unattainable. That said, it appears that judges and arbitrators are beginning to respond (in desirable, though not always perfect, ways) to the existing competition in international adjudication. While there are potential hazards here, which we might discuss, I do believe that, where controls on courts and judges are ineffective, encouraging competition is an idea worth pursuing.