Competition and Control: A Reply to Hakimi and Helfer

by Jacob Katz Cogan

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.

One Response

  1. I think all of the contributions on this issue are very interesting and provide good material for further analysis. As someone who worked for over five yearsin an NGO focused on the ICC (the CICC) and who works at the ICTY now, I have frequently heard the claim that international criminal tribunals will inevitably grasp for expanded jurisdiction or other institutional claims to power. Mr. Cogan states this by saying that these institutions lack sufficient internal controls. I respectfully disagree. While arbitral bodies may be in competition for business and are selected under contract or treaty (resulting, incidentally, in a general pressure to be sympathetic to those writing contracts), international criminal tribunals have little institutional reward for overreaching, and have plenty of disincentives. Quite simply, they have no police force, no certain budget, and very little infrastructure or comfortable institutional tradition. Everything can be taken away from them if they fail to control themselves.

    Staff generally understand the risks of overreach and the inevitable reaction to that overreach. They have no interest in embarrassing the institutions they work for. Frequently, they have made personal sacrifices in order to work at these institutions, and their plates are more than full. It is not analogous to a domestic judiciary which may need to fight for power with other governmental organs. If the ICC, for example, fails to perform in a manner that earns general respect, it will not become too powerful. It will become irrelevant. OTP staff at the ICTY comment that without state cooperation, the ICTY is an armless body without effective power.

    Don’t worry too much about these newborn institutions becoming too strong. Worry about them surviving the century.

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