29 Aug The Structure of International Tribunals
Larry Helfer’s post on the creation of new international tribunals presents the puzzle of why states create so many new institutions when they could, in theory, use existing institutions. I suspect that he is right that part of the answer is a desire to create more focused and technically expert tribunals.
But perhaps states also desire more closely controlled tribunals that are, in a sense, more dependent and easily tweaked if they, or their rulings, go awry. I would welcome Larry’s thoughts on that hypothesis, given the recent exchange he and Anne-Marie Slaughter engaged in with John Yoo and Eric Posner. The question of independence is significant not only from the standpoint of the rule of law. It goes to the heart of the theoretical debate over why states create tribunals at all.
Let me add another puzzle to the mix. While some international tribunals only permit states to bring claims or to initiate disputes, others allow private actors to do so. Consider the various “optional protocols” in the human rights arena, for instance, or the many bilateral investment treaties negotiated since the 1980s. These agreements create institutions or empower existing institutions to receive petitions from private actors. The puzzle here is two-fold. Why would states allow private actors the power to sue them? And why do only some–in fact, a small fraction–of international tribunals allow claims to be brought by actors other than states?
In previous work I’ve analogized this to the choice between “police patrols” and “fire alarms,” drawing on theories of congressional oversight in the American context. Allowing private suits is akin to creating many fire alarms that individuals can pull as the need, or incentive, arises. Police patrols, by contrast, consolidate the power to find and bring forward violations in the state. One is a decentralized process, the other centralized. In current work I am trying to understand the logic of when police patrols or fire alarms are favored in international agreements and in the creation of international tribunals. Along with Barb Koremenos of Michigan, who is creating a very large dataset of coded international treaties, I hope to both generate and test explanatory theories of when one or the other is employed.