Competition and Control in International Adjudication

by Jacob Katz Cogan

My thanks to Opinio Juris for hosting this online symposium, to the Virginia Journal of International Law for publishing my essay Competition and Control in International Adjudication, and especially to Monica Hakimi and Larry Helfer for commenting.

The essay takes issue with the standard view among international law and international relations scholars that States have sufficient and effective tools to constrain international courts. Like international organizations generally, international courts have minds and interests of their own. As a result, they can be tempted to expand their powers beyond those provided for in their mandates or by informal expectations. At the same time, international courts are protected from external control because of the principle of judicial independence and because of structural constraints on international lawmaking and institutional reform. This combination of weak external control and imperfect self-control provides international courts with opportunities to exceed their mandates. It also makes States more likely not to consent ex ante to the jurisdiction of international courts, to withdraw from the jurisdiction of courts to which jurisdiction they had previously consented, and to disobey judicial decisions. In other words, weak judicial control mechanisms create weak dispute resolution mechanisms. This is not optimal, as the international system needs greater not fewer opportunities for peaceful dispute settlement. In order to strengthen international courts, I argue that we need to think anew about how best to maintain control over them. The answer, though, is not, as some would have it, to decrease judicial independence by increasing direct State control. Instead, the essay argues that increasing competition among international courts will more effectively constrain international judicial power and, consequently, increase the likelihood that States will recognize and accede to international judicial authority. Competition among courts will also lead to better – and perhaps even convergent – decisions. Therefore, in contrast to the received wisdom that international courts, as they proliferate, should be more respectful and deferential to each other, the essay claims that such system-protective doctrines are counterproductive. Instead of striving for uniformity, we should accept and develop a system of competitive adjudication in international law.

As befits an essay, this conclusion is meant to be as much thought-provoking as definitive. And, indeed, it is too early to know for certain if the approach I recommend will succeed, or whether the necessary competitive conditions are unattainable. That said, it appears that judges and arbitrators are beginning to respond (in desirable, though not always perfect, ways) to the existing competition in international adjudication. While there are potential hazards here, which we might discuss, I do believe that, where controls on courts and judges are ineffective, encouraging competition is an idea worth pursuing.

One Response

  1. Jacob,

    This really is an interesting and thought-provoking idea, which most certainly does go against the received wisdom. But, wouldn’t you say that, even if one accepts your argument in principle, there is a serious problem in actually achieving the conditions necessary for competition.

    I am speaking, of course, of the very restrictive ways one can access international courts and tribunals, based as they are on state consent. It is rare even for a state, let alone a private litigant, to actually have the option to take its case against another state to more than one international court. In other words, forum shopping is difficult if all but one of the fora are closed to you.

    An exception to this might be the field of commercial or trade arbitration, which I’m not very familiar with. But, to take a look at more classical forms of public international law – take for example border or maritime delimitation. There’s always been competition, in a way, between the ICJ and arbitral tribunals, but it is very, very rare for an arbitral tribunal to explicitly depart from something that the ICJ has said – I can’t think of an example, really. Then you also have the fact that states often do have the option to take their case to the ITLOS, but they just don’t and prefer the ICJ, which means that they value predictability more than anything else.

    Then there’s the issue that many of the well known cases of diverging jurisprudence between two international courts happen in cases where the two courts are different in specialization and in their basic function. Take as an example the whole Nicaragua – Tadic – Genocide – effective v. overall control thing. That discordance happened between the ICJ – a court resolving disputes between states – and the ICTY – a criminal court, on an issue of general international law. The competition between these two courts is more a competition between egos than anything else – they are completely different, and there can be no choice whether you go before one or the other.

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