Competition and Control in International Adjudication: A Response

by Monica Hakimi

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.

http://opiniojuris.org/2008/01/31/competition-and-control-in-international-adjudication-a-response/

One Response

  1. Both Jacob Cogan’s interesting essay, and Larry Helfer’s thoughtful response, address issues of competition and control in international adjudication, focusing on public international law tribunals. While these are an essential part of the story, there are other tribunals and cases that rightly fit in the general category of “international adjudication,” including international arbitral tribunals and national courts.

    As an initial matter, under virtually any definition, most notably Lon Fuller’s classic formulation, arbitration constitutes a form of adjudication. While ostensibly private, even when States are not parties, international arbitration tribunals resolve important international matters and mediate between competing national interests and policies when adjudicating cases. Meanwhile, international cases are also adjudicated in domestic national courts. In these cases, even when States are not involved as parties, their activities policies and laws are implicated. The fact that

    these forms of adjudication are more prevalent than cases before more traditional public international tribunals suggests that they have a role to play in any discussion about competition among forums of international adjudication.

    These forms also raise interesting (and different questions) about both consent and control. On the one hand, with adjudications in foreign national courts, States often have limited opportunities to withhold consent or, as long as assets are available abroad, to otherwise control those processes. The rise of human rights litigation in the United States, and recent cases in European courts involving Pinochet, remind us that these cases are not simply eccentric outliers, but an important component of any discussion of international adjudication. Moreover, States do sometimes affirmatively select national courts for their international adjudications, as illustrated by the recent case brought in U.S. courts by the EU against tobacco companies for alleged international smuggling.

    Meanwhile, even putting aside investment arbitration (which arguably fits more comfortably in the authors’ primary focus), what is often called “international commercial arbitration” is the genre through which perhaps the greatest number of international adjudications are brought. While States can consent to this system of adjudication by signing onto international conventions that oblige them to enforce arbitration agreements and awards, the availability of assets worldwide means that their consent is not necessary for enforcement of awards implicating national laws and policies, and sometimes also State actions. Arbitrations involving claims of official corruption would be the most obvious example, but international arbitration can involve virtually any question that can be brought before a public international tribunal, even if framed in terms of civil liability instead of criminal liability. It would be interesting to include these forms of adjudication in a discussion of consent to and competition among forms of international adjudication.

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