EJIL: Talk!

I find myself in the awkward position of being in full agreement with Prof. Laurence Helfer’s criticism of the “broad brush” approach used in my EJIL article to describe trends in international adjudication (this is not surprising; often I find myself nodding in agreement when reading Helfer’s first-rate academic work). When writing overview articles such as “No Longer a Weak Department of Power?“, the dilemma is always whether to focus on the forest or the trees. Obviously, my choice of the “forest” – the general trends in international adjudication – entailed a superficial, almost caricature- like, treatment of the “trees” – the specific courts. Readers of my article would there be well-advised to remind themselves of the many shortcomings of the approach I have selected.

In particular, Helfer is right in noting that regional courts should not be lumped together as a single category for all purposes:

“Many studies of international adjudication appear to assume either that the legal and political dynamics of global or European courts will apply to tribunals in other regions, or that lesser known courts in Africa, Latin America, and Eurasia have done little to merit the attention of scholars.  A growing body of evidence suggests, however, that both assumptions are unwarranted.”

 Indeed, the recent ASIL article by Alter and Helfer focusing on the Andean Court of Justice is an excellent illustration of the unique nature of some regional courts and of the unpredictable way in which their work and impact develops over time.

 Still, I would defend the following position: While the effectiveness of different courts varies dramatically across regions due to the background “legal and political dynamics” that influence their work, the goals set for regional courts upon their establishment tend to converge. This happens, to a large extent, as a result of the “copycat” motivation that leads law-makers to “implant” models of successful legal institutions across regions and regimes. So, for example, the perceived success of the ECHR, has led to the creation of the comparably structured I/A CHR and fledgling African Court of Human Rights (now part of the African Court of Justice and Human Rights). Although the three courts encounter very different legal and political problems and have widely divergent records of achievement (meaning that the “implant” has been sometimes rejected), they appear to share, as a result of their derivation from a common “prototype”, a strong commitment to promoting respect for human rights and to holding member states accountable. Hence, the I/A CHR and the ACHR, like the ECHR, are illustrative of the new ethoi of international courts – enforcing norms and building an international rule of law.

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Professor Yuval Shany is the Hersch Lauterpacht Chair in Public International Law, Faculty of Law, Hebrew University of Jerusalem. His latest EJIL article, summarised in this post, is available here. His publications include The Competing Jurisdictions of International Courts and Tribunals (OUP, 2003) and Regulating the Jurisdictional Interactions Between International and National Courts (OUP, 2007).

The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international disputes settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and non-state parties and the growing inclination of national courts to apply international law. Arguably, these cumulative developments herald a qualitative change in the configuration of the field of international dispute settlement. Whereas international law had been applied in the past by judicial bodies on relatively few occasions, the operation of the new international judiciary has been much more “routinized”, and nowadays increasingly resembles the operation of national courts (and, in the same vein, the application of international law by national and international courts increasingly resembles the application of national law by national courts). At a deeper level, one may claim that the operation of the new international judiciary is governed by new ethoi (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution).

The second part of the article discusses some of the “blind spots” of the present judicial institutional landscape: a) Jurisdictional gaps – the new courts have been concentrated in a relatively limited number of areas of international relations, mostly appertaining to the protection of basic human rights, some economic relations, and maritime interests. Many other areas of international life of critical importance (such as politically-charged conflicts before international courts relating to war and terror) largely remain outside the compulsory jurisdiction of any international court. What is more, the personal jurisdiction of the new international judiciary is less than universal, and sometimes those very states that are most likely to become involved in conflicts falling under the jurisdiction of the new courts tend to withhold their consent to jurisdiction; b) Enforcement gaps – the increase in the jurisdictional reach of international courts has not been met with a comparable increase in their enforcement capabilities, which would enable courts to effectively carry out their missions. While this may be less of a problem in the economic sphere, (where cooperative regimes typically generate their own incentives to comply), it appears to be a serious obstacle to the smooth functioning of international courts in fields such as criminal law.

 While national courts can, in theory, fill some of these remaining jurisdictional and enforcement gaps, their ability to actually do so remains unclear. Perhaps the combined effect of a more robust ICJ, and more international law-minded national courts, could go some way towards closing the existing gaps in international jurisdictional coverage and enforcement.

 The third and last part of the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: a) coordination problems – the uncoordinated manner in which the new international courts were created, and the specialized character of their jurisdictional structures, generates potential jurisdictional conflicts and introduces tensions that threaten the coherence of the international legal system as a whole; b) effectiveness and perceived legitimacy  – the judicialization of dispute settlement may not always produce better outcomes for the relevant stakeholders, particularly where some of the parties deem the applicable norms to constitute an inadequate basis for a just and comprehensive settlement (without some adjustments). Moreover, one may wonder whether the investment of considerable political and financial resources on the part of the international community in establishing new international courts always represents the most cost-efficient investment of resources.

 The expansion of international courts and international jurisdiction without seriously addressing problems related to their jurisdictional limits, enforcement powers, jurisdictional and normative relations with other bodies, effectiveness and perceived legitimacy may result in a political and legal backlash that would, over time, complicate the mission of international courts. Hence, one of the key challenges in the 21st century for the international judiciary (and the international community on whose behalf it operates) will be to develop legal doctrines, best-practices, and institutional safeguards to address such concerns.