Competition and Control in International Adjudication: A Response

Jacob Cogan’s Competition and Control in International Adjudication provides a rich and thought-provoking analysis of the importance of, and options for, maintaining controls over international courts. Jacob argues that existing controls are relatively weak, and that we should encourage competition among courts to fill the gap. Competition, he asserts, will help constrain international judicial power and may lead to more desirable judicial decisions: If one court oversteps its mandate or issues unreasonable decisions, states will take their disputes elsewhere, and the overstepping or unreasonable court will be forced to adjust its practices to attract future business.

Jacob recognizes that it is too early to know for sure whether the proliferation of international courts will result in increased competition among courts, and in better, more reasoned judicial decision-making. I question to what extent it will. In order for market forces to affect judicial decision-making, international actors must have enough “market” information—i.e., information about the differences among courts, and about each court’s strengths and weaknesses—to enable them to choose among courts. Yet, as Jacob acknowledges (pages 429-430), international actors already have trouble tracking and digesting the many pronouncements and decisions of international courts. This problem would only multiply with an increase in the number of courts, and it likely would detract from the competition-enhancing effect of proliferation.

More importantly, any competition-related benefits of proliferation may be outweighed by larger, systemic costs. Specifically, the proliferation of international courts likely would result in more fragmentation and confusion in the law, and in a shift in the functions that courts perform. Different courts no doubt will interpret the same rules differently, and will thereby generate inconsistent claims on what the law is and how it should apply in future cases, in the absence of any final arbiter to resolve those questions. This has already happened to some extent in the context of direction and control responsibility. In Nicaragua v. United States, the ICJ found that, for a state to be responsible for directing or controlling the activities of a non-state actor, the state must exercise “effective control” over the relevant, wrongful acts. Then, in 1999, the ICTY suggested a shift in doctrine—to a more relaxed standard of “overall control.” In 2007, the ICJ held its ground, rejecting the ICTY standard of “overall control” and reiterating its standard of “effective control.” Under Jacob’s theory, the conversation between the ICJ and the ICTY is competition-enhancing. This might be true to the (limited) extent that the mandates of the ICJ and ICTY overlap. But in any event, the conversation results in a lack of coherence on what the law is or how it should apply in future cases.

One might respond to that concern by asserting that this is how the international legal process works. International law develops and evolves based on the myriad of conversations between different international actors. The proliferation of international courts would simply result in an increase in the number of judicial actors (as opposed to, for example, state actors) that participate in that process. But that would reflect a major shift in how international actors perceive and employ international courts. Courts perform two sorts of functions in the international legal process: (1) they resolve the particular disputes before them; and (2) they provide authoritative (even if not dispositive) statements of law for the international community as a whole. Jacob’s proposal for encouraging competition focuses on the first of these functions. Even if competition would make courts more effective in performing that function, however, it likely would undermine their efficacy in performing the second, more systemic function. An increase in the number of courts would mean that any one court would have less authority to make and clarify the law for the international community as a whole, and that judicial decisions would therefore lose their place of prominence in the international legal process. Judicial decisions would increasingly be among the cacophony of voices that together contribute to the evolution and development of law.

Jacob’s piece thus begs the question of what functions international courts should perform. I have mixed views on that question. On the one hand, I believe that the international legal process benefits when courts issue sound and authoritative pronouncements of law. Such pronouncements help make and clarify the law in an imperfect system that often suffers from fragmentation and confusion. On the other hand, the concern that Jacob addresses is a real one: Too often, international courts expand their authority or issue unsound, unreasoned decisions. Indeed, even the most authoritative courts (like the ICJ) seem to perform best when deciding cases (like maritime boundary cases) that are context-specific and that do not invite them to make new law or to resolve contested issues in existing law. In other words, international courts are better at resolving particular disputes than they are at authoritatively making and clarifying the law. Jacob’s proposal thus would focus courts on what they do best. Before we move in that direction, however, I encourage international lawyers to consider whether there are any options for control that enhance both judicial functions—that hold courts in check and improve the quality of their decisions, without undermining their authority to make and clarify the law.