Competition and Control: A Response to Professor Cogan

Thanks to Opinio Juris for inviting me to comment on Jacob Cogan’s interesting and thought-provoking paper, Competition and Control in International Adjudication. Jacob’s essay correctly recognizes that a system of controls is essential to the successful operation of the international legal system in general and international tribunals in particular. Controls are necessary, Jacob persuasively argues, because the states that create international tribunals and subject themselves to their jurisdiction benefit from adjudicating disputes before independent judges. Absent such controls, however, there is a risk that some judges will overreach, for example by engaging in various forms of activism or lawmaking, thereby frustrating the interests and objectives of the states that appointed them. The challenge that countries face, therefore, is how to preserve the independence of the international judiciary while providing an incentive for its members “to make rules—both procedural and substantive—that accord with the interests of States” and to curb their otherwise activist tendencies. (p.441) The solution the essay proposes is competitive adjudication—restructuring international adjudication to provide states with greater choice in selecting venues for adjudicating their disputes. Greater choice, Jacob argues, will create a rivalry among international courts and tribunals to attract litigants, thereby cabining judicial excesses. (p.449)

I agree with Jacob that competition is an important mechanism to control the output of international tribunals and, further, that competition can exist without compromising judicial independence. I also concur with the thoughtful analysis that appears in the essay’s conclusion, where Jacob critiques those commentators who argue that competition necessarily promotes incoherence and unpredictability in the international legal system. As I argued in an earlier piece on Forum Shopping for Human Rights, 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.

I part company with Jacob, however, over his view that there is insufficient competition in the international judicial system as it is currently structured. As Anne Marie Slaughter and I argued in Why States Create International Tribunals, international judges are subject to an diverse array of formal, structural, and political control mechanisms that states, both individually and collectively, can be applied both before a tribunal is created and after it is up and running. Judges also face discursive constraints generated by their participation in a global community of law. (For an illustration of the different types of controls and their operation, see table 3 on p.944) Viewed individually and in combination, these mechanisms—which include forum shopping among tribunals with overlapping jurisdictions—provide ample room for governments to limit judicial overreaching while preserving judicial independence.

Jacob disagrees. He challenges the “assumption that controls on international courts are sufficient and effective.” And he argues further that that “the weaknesses of judicial controls means that States are more likely to avoid courts, abandon them, or disregard their decisions, potentially condemning courts to irrelevance.” (p.415) If true, this would indeed be a serious threat to the international judicial system. But the revealed preferences of states do not support this claim, as the evidence in Why States Create International Tribunals reveals (see pp. 910-17). States are recognizing the jurisdiction of international tribunals in growing numbers and litigating cases before such tribunals with increasing frequency. These trends are especially pronounced for the WTO, the ICC, and human rights tribunals, and to a lesser degree, for regional tribunals whose competence covers trade and economic law. To be sure, not all tribunals have experienced such expansions. The compulsory jurisdiction of the ICJ and ITLOS, for example, has not been widely accepted. And there are also notable examples of backlash against tribunals, many of which Jacob describes in the essay.

Yet there is also striking evidence to the contrary. For example, states have expanded the jurisdiction of the two tribunals that Jacob identifies as immune from competition and therefore at risk of “market failure.” (pp.444-45) The recently-concluded Treaty of Lisbon delegates new powers to the European Court of Justice (ECJ) to interpret the now legally binding Charter of Fundamental Rights of the European Union as well as EU criminal justice agreements. A similar trend is underway in the European human rights regime. Until 1998, the jurisdiction of the European Court of Human Rights (ECHR) was optional. That changed with the ratification of Protocol 11, which made jurisdiction compulsory. Yet by then the ECHR had already significantly expanded the Convention’s rights and freedoms in ways that its founders could not have anticipated. Since making ECHR jurisdiction mandatory, the member states have continued to delegate additional authority to the ECHR by adopting new protocols.

Viewed cumulatively, this evidence suggests that states do not believe that independent international tribunals are “exceed[ing] their mandate[s].” (p.439) For even if Jacob is correct that states have difficulty checking judicial overreaching, they surely can decide not to delegate new powers to tribunals that have allegedly overreached or to voluntarily accept additional mechanisms for litigating disputes internationally.

I’ll conclude by briefly highlighting two broader issues that Jacob’s essay raises. First, before deciding whether existing judicial control mechanisms are inadequate, one first needs a theory of whether judges are in fact exceeding their mandates. Completing contracts, filling gaps, and engaging in judicial lawmaking may be precisely what states want a tribunal to do. For this reason, the very same activities that might be condemned as activism by one court may be welcomed in another. The broader theoretical question is whether international tribunals are the trustees or agents of states, an issue explored in depth in a thoughtful forthcoming article by Karen Alter, Agents or Trustees? International Courts in their Political Context, 14 European Journal of International Relations 33 (2008). Judicial trustees too need controls. But they are likely to be differently designed and differently utilized than the mechanisms used to control agents.

Second, Jacob’s essay highlights the need for additional empirical research analyzing the effects of different degrees of competition on judicial decision making. For example, the availability of multiple venues for adjudicating law of the sea disputes provides a natural experiment for testing some of Jacob’s theories. In such a high competition zone, we should expect the different tribunals and arbitral bodies to converge over time toward substantive standards that more faithfully reflects states’ interests. There are likely to be other empirical examples worth exploring.

In sum, Competition and Control in International Adjudication raises important and timely issues and is a welcome addition to the growing body of scholarship on international tribunals.