Why Do States Create New International Courts and Tribunals?

It is by now old news that litigation above the level of the nation state has expanded exponentially over the last fifteen years. This expansion appears in three distinct forms. First, states have established more than a dozen new international courts and tribunals during that time period. Second, states are recognizing the jurisdiction of new and existing tribunals in increasing numbers. And third, an increasing number of tribunals are actively used, as demonstrated by their swelling dockets and the large number of decisions they issue. According to a 2003 study by Prof. Karen Alter of Northwestern, “more than 80% of the total international judicial activity [has] occurred in the last 13 years alone.” (For additional details, see my recent co-authored article or the excellent and informative web site of Project on International Courts and Tribunals run by Cesare Romano of Loyola Law School.)

A basic question that continues to divide scholars and commentators is why states create these courts and tribunals. As Andrew Moravcsik has pointedly framed the question: “Why would any government, democratic or dictatorial, favor establishing an effective independent international authority, the sole purpose of which is to constrain its domestic sovereignty in such an unprecedentedly invasive and overtly nonmajoritarian manner?” The plausible answers vary widely. They include providing neutral information to the parties; hands-tying; enhancing the credibility of treaty commitments; establishing focal points for future cooperation; and judicial lawmaking to fill gaps in international rules.

One aspect of this debate seems to have received insufficient attention: Why do states create new international tribunals when, in many instances, they could just as easily confer additional jurisdiction on existing judicial or quasi-judicial bodies? Establishing a new tribunal is expensive (new courthouses, judges’ salaries, administrative costs) and time-consuming. And it increases the likelihood of forum shopping and conflicting rulings, at least where the new court’s jurisdiction overlaps with those of existing tribunals.

The increasing fragmentation and specialization of international law may provide an answer to this question. As international legal system matures, its interrelated subsystems are acquiring distinctive characteristics. It seems plausible, therefore, that states would want to establish a new tribunal with limited jurisdiction staffed by judges with the relevant legal and technical expertise. A narrow jurisdiction might also increase the likelihood of future compliance with the court’s rulings, since the more specialized and technical the subject matter the less likely it is to raise domestic political hackles. (There are public choice arguments that weigh against this last point, but I’ll put them aside for now.)

But the trend toward new tribunals might have negative consequences for existing tribunals. When faced with the choice between submitting a dispute to a court of general jurisdiction such as the ICJ or a specialized tribunal, states may well prefer the specialized one. The result may be that the ICJ is left with disputes that no other tribunal is competent to adjudicate or really hard cases involving legal issues, such as the use of force, that have not been assigned to more specialized adjudicatory bodies. If anyone has evidence that confirms or disproves these hunches, please let me know.