Comments on Shany’s “No Longer a Weak Department of Power?”

 From July 2009, Professor Laurence Helfer will be the Harry R. Chadwick, Jr. Professor of Law at Duke University School of Law. His publications include: “Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community”, (2009) 103 Am. J. Int’l L. 1 (with Karen Alter and Florencia Guerzovich); and  Why States Create International Tribunals: A Response to Professors Posner and Yoo,” 93 California Law Review 899 (2005) (with Anne-Marie Slaughter)

 Yuval Shany is a leading international law scholar of international courts and tribunals.  His many publications, including two books in Oxford University Press’s International Courts and Tribunals Series, have literally mapped the field’s coordinates.  His work has explored both the horizontal connections among the burgeoning number of international adjudication mechanisms and vertical relations between international judges and their national colleagues.

 In his recent article, No Longer a Weak Department of Power? Reflects on the Emergence of a New International Judiciary, Professor Shany provides a clear-eyed and succinct overview of changes “in the ethos underlying the operation of international courts” that are the result of an increase in the number of such courts and an expansion of their authority.  Whereas the ground norm that once informed international adjudication was dispute resolution, Professor Shany argues that the new international judiciary emphasizes different values-“the advancement of specific normative and institutional goals,” the maintenance of subject-specific international regimes, and “strengthening the rule of law.”  After describing these “new ethoi,” No Longer a Weak Department of Power? provides a brief tour of the contemporary international judicial landscape, including its peaks (such as the adjudication of international trade disputes and the role of national courts in applying international law) and its valleys (jurisdictional and normative conflicts and compliance problems).

 In this comment, I first highlight what I see as the principal contributions of Professor Shany’s  article.  I then discuss one small ambiguity in the article concerning whether international courts can or should resolve “high politics” and “high profile” disputes, such as those involving the use of force and terrorism.  I conclude by arguing for a more empirically-grounded approach to the study of international courts and tribunals, an approach that includes paying greater attention to the distinctive characteristics of the many regional and sub-regional courts outside of Europe whose increasing activity has been ignored by most scholars.

 1.  Principal contributions.

Professor Shany is surely correct that there has been a “significant transformation” of international adjudication-a shift that other legal scholars and political scientists have analyzed over the last several years.  He identifies several different features of this transformation:  (1) the growing number of new international courts, tribunals, and quasi-judicial review bodies that exercise compulsory jurisdiction over states parties; (2) the expanded authority of established tribunals; and (3) the rising usage rates of many tribunals; (4) the “more international law-friendly attitude” of national judges; (5) standing and access rules that include private parties and other non-state actors; and (6) international courts with limited subject matter mandates and geographic reach.

 For some, these developments herald a much-anticipated age of judicialization of world politics.  In contrast, Professor Shany is neither overly sanguine nor overly pessimistic.  He offers a refreshingly balanced account which recognizes that the new international judicial system is a “work in progress” and, as a result, that one must be cautious in assessing the system’s achievements and its future prospects.   It is especially noteworthy that Professor Shany does not take it on faith that the benefits of creating a new international court necessarily outweigh the costs, and that he entertains the possibility that such a court may in fact be “a substitute for more meaningful international action which may be less politically palatable to key states.”

 A further contribution of No Longer a Weak Department of Power? is its focus on the relationship between international and national judges.  Professor Shany correctly recognizes that the legitimacy of domestic courts is more established than that of their international counterparts, and that the adjudication of some international law issues before national judges will be necessary so long as the international judicial system remains partial and incomplete.  But he also acknowledges the risks of domestic adjudication which, at the extreme, can lead national judges to supplant the authority of their international colleagues by adopting divergent interpretations of international rules or by privileging domestic values (such as governmental immunity) over adherence to those rules.

 The article’s final contribution is its recognition that most new international courts are in fact regional in scope and are thus accessible to geographically-defined states and non-state actors.  Professor Shany distinguishes these regional tribunals from their “traditional” global predecessors with the following insightful statement:  “Whereas the classic courts had ‘shallow’ jurisdictional powers (i.e., optional jurisdiction) over all potential international disputes, the new courts have a much ‘deeper’ jurisdictional basis (i.e., compulsory jurisdiction), but only over a limited number of issues pertaining to a limited number of parties.”  I return to the subject of regional tribunals below.

2.  International courts and “high politics” disputes.

 No Longer a Weak Department of Power? asserts that international courts and tribunals have made only limited contributions to the resolution of high-politics disputes, such as those involving “the cold war, decolonization, the Middle East conflict, and the war on terror.”  Although I agree with this characterization, I was uncertain whether Professor Shany views this state of affairs as normatively desirable or as one of the new international judiciary’s shortcomings.  At several points in the article, Professor Shany is skeptical that international judges can alter the behavior of states that value important national policies-including the use of force-more highly than compliance with international law.  Yet in the conclusion, he describes recent involvement by the International Court of Justice (ICJ) in military conflicts in Georgia, Kosovo, and South America as “raising certain hopes that the Court will play a more meaningful role in the coming years than it has previously in the resolution of high-profile international disputes.”  It would be interesting for Professor Shany to clarify the appropriate role that he believes the new international judiciary should play in resolving these and other high-politics disputes.

3.  The importance of empirical analysis and the distinctive law and politics of regional tribunals.

One of the strengths of No Longer a Weak Department of Power? is the many examples it provides of recent judicial rulings.  Yet the article also acknowledges that commentators often use anecdotal evidence to make general claims about broader patterns and trends in international adjudication.  Until recently, reliance on anecdotes was an unavoidable feature of scholarship on international courts and tribunals.  There were, after all, only a small number of international rulings, making generalizations both easier and more accurate.  But as the number of rulings has increased exponentially, more sophisticated empirical analyses have proliferated.  Political scientists (sometimes working with legal scholars) have taken the lead in this effort, publishing important quantitative and qualitative analyses of the ICJ, the WTO, and the two longstanding European tribunals-the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR).  Erik Voeten’s International Courts Data web site is a crucial resource for this growing body of empirical work.

 Yet legal scholars and political scientists have thus far mostly ignored the activities of regional tribunals outside of Europe, notwithstanding the fact that the large majority of new international courts are regional in scope.  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.

Karen Alter and I recently completed a detailed study of the Andean Court of Justice (ATJ)-a court established in 1984 with jurisdiction over five countries in the Andean region of South America.  It is not widely known that the ATJ is the third most active international court, as measured by the number of decisions issued, or that ATJ preliminary rulings have steadily increased over the last decade.  To fill this vacuum, Professor Alter and I coded all 1338 ATJ preliminary rulings available on the Andean Community website from the court’s founding through 2007.  We also interviewed over forty government officials, national and international judges, private attorneys, and interest groups in Colombia, Ecuador, and Peru.

 Our findings-published or forthcoming in several articles-suggest that international litigation patterns outside of Europe may deviate significantly from those of global or European courts.  The Andean Community’s founding treaty and secondary legislation spans a broad range of subjects, such as customs, taxes, tariffs and nontariff barriers to trade, and competition law.  And the ATJ was modeled directly on the ECJ, a court that has adjudicated a wide range of legal issues.  But the ATJ’s docket is strikingly different:  over 90% of its decisions concern Andean intellectual property rules.  Within this single issue-area, the ATJ is both active and effective.  Its decisions have helped to establish intellectual property as a rule-of-law island in which national judges, administrative officials, and private parties participate in regional litigation and conform their behavior to Andean law.  In the vast seas surrounding this island, however, Andean rules remain under-litigated and often circumvented by domestic actors.

 Why is the ATJ’s activity and effectiveness confined to a single issue area?  Our coding and interviews reveal that domestic intellectual property administrative agencies are the engine that drives Andean litigation.  These agencies-responsible for applying Andean law when reviewing applications to register patents and trademarks and balancing private interests against countervailing policies such as public health and consumer protection-are the ATJ’s most enthusiastic interlocutors and compliance constituencies.  Agency officials prefer that cases be referred to the ATJ given the limited intellectual property expertise of national judges.  And they have followed ATJ rulings over contrary national laws that the agencies have declined to enforce.  Andean judges, in turn, have responded to the agencies’ requests by issuing decisions that have improved their decision-making procedures, deferred to their policy preferences, and helped to insulate them from domestic political pressures.

 The symbiotic relationship between the ATJ and the domestic agencies suggests a finding of broader significance:  that even in countries in which the rule of law is weak or under-developed, a distinctive group of sub-state actors can serve as a conduit to international courts that bypasses the indifference or even the resistance of other government institutions.

There is growing evidence, albeit still anecdotal, that other regional or sub-regional tribunals may be developing their own distinctive islands of international adjudication.  Consider the Court of Justice of the Economic Community of West African States (ECOWAS).  The court  was inactive for more than a decade after its founding.  In 2005, the ECOWAS member states granted private parties access to the court and expanded its competence to include human rights matters.  The court has since received a stream of human rights complaints and issued a number of noteworthy human rights rulings.  Other sub-regional courts have become increasingly active in recent years, as indicated by a handful of studies of the Caribbean Court of Justice, the Court of Justice and Arbitration of the Organization for the Harmonization of Business Laws in Africa, the East African Community Court of Justice.

 No Longer a Weak Department of Power? does not cite a single decision from any of these courts.  To be fair, one cannot fault Professor Shany-who, as noted above, emphasizes the importance of regional tribunals-for failing to cite any particular ruling in an article that describes broad trends and developments.  Yet the activities of regional judges are surely just as important to understanding the “ethoi of the new international judiciary” as are the decisions of their more established and better known colleagues.