Author Archive for
Jacob Katz Cogan

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.

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.

Symposium: Cogan Reply to Pauwelyn

by Jacob Katz Cogan

[Jacob Cogan is Assitant Professor of Law at the University of Cincinnati and a contributor to the Opinio Juris On-line Symposium]



My thanks to Professor Joost Pauwelyn for his thoughtful comments, to Opinio Juris for inviting me to participate in this online symposium, and to the Yale Journal of International Law for publishing my essay on Noncompliance and the International Rule of Law.



In the essay, I argue that noncompliance is a necessary component of the international legal system. In so doing, I take issue with the majority view of international lawyers, “who, well aware of the weaknesses of the international legal system and eager to bolster the international rule of law and its substantive legal prescriptions, are inclined . . . to take a reflexively hard line with noncompliant acts.” The essay’s particular focus is on “operational noncompliance,” or “noncompliance that keeps a partially effective system, such as international law, operational by reconciling formal legal prescriptions with changing community policies or by bridging the enforcement gap created by inadequate community mechanisms of control.” I acknowledge that there are other forms of noncompliance that may be beneficial, but I do not consider them at length.



Professor Pauwelyn first claims that I go “too far by underestimating the flexibilities and exit options that exist within the system of international law.” What I describe as noncompliance, he sees as “flexibilities and exit options perfectly permitted and accepted within international law.” I wish more people thought along those lines, and I wish it were that international law were more like what Professor Pauwelyn describes. Unfortunately, international law and international legal scholars appear to be trending the opposite direction, and this is precisely the lament of my essay. The law regarding countermeasures – at least if one assumes the International Law Commission’s Draft Articles on State Responsibility as a benchmark – is not flexible but restrictive. And the idea that custom might be changed by violation is now widely condemned. As Brigitte Stern wrote a few years ago, “the deficiencies of international law are no excuse for its violation.” Thus, while international law certainly has some flexibilities, I think Professor Pauwelyn overestimates them (which leads him to conclude that I underestimate them).



Professor Pauwelyn’s second claim is that I don’t “go far enough” because I “take[] it for granted that ideally ‘compliance’ should always be the goal.” Here he notes that “[d]omestic law comes in degrees (think of contracts, statutes and constitutions) and is protected and enforced at various levels (think of liability rules, property rules and inalienability; compensation, fines and imprisonment).” But even domestic law divides the world dichotomously between violation, breach, and guilt (that is, whether an act is in accordance with one’s obligations, be they public or private, and not otherwise excused) and the consequences that result therefrom. In most legal systems, compliance is the goal, and indeed that is the myth that sustains the law. What varies is how legal systems treat noncompliance. There is a difference, in other words, between the idealized goal and whether and how that goal is enforced. I see it as no vice, then, to suggest that compliance should be the norm, so long as one doesn’t assume that norms are sacrosanct, that acts that violate norms are per se illegal, or that illegal acts should always be condemned. Because the international legal system is only partially effective, we should be particularly aware of and acknowledge “the key role operational noncompliance plays in maintaining the efficiency and relevance of the international legal system.” (This doesn’t make international law any less “real law,” which contrary view Professor Pauwelyn mistakenly attributes to me.) Far from binary thinking, this approach recognizes the complex ways in which we should appraise acts, including formally illegal acts, in international law.

Symposium Paper 1: Non-Compliance and the International Rule of Law

by Jacob Katz Cogan

Abstract



In an effort to elevate the international rule of law, international law scholars, especially since the end of the Cold War, have endeavored to determine how best to induce compliance, that is, how to encourage nations to obey international law. For all its advantages, this focus on compliance obscures the role of noncompliance in the international legal system. In the absence of effective mechanisms for decision and control, States sometimes feel obliged to take actions that formally violate existing norms but may nevertheless reflect current or developing expectations of lawfulness or make existing law effective. This is “operational noncompliance” – noncompliance that keeps an imperfectly effective system, such as international law, operational. Though compliance is and should be the norm, those who discount operational noncompliance disregard the tension, which is acute in the international arena, between the necessity in a legal system of maintaining the principle that the law is to be complied with – because otherwise what does it mean to be a law? – and the role of noncompliance in developing new law and in enforcing current law. This Essay explores that tension, arguing that we should recognize that operational noncompliance is and must be a part of the international legal system, as it is currently constituted, and that, in some cases, acts of operational noncompliance are legitimate. The failure to acknowledge the functions of operational noncompliance mythologizes contemporary international law, limits our ability to achieve community policies, and risks making international law irrelevant. Unless and until we have more effective international institutions, we will need to come to terms with noncompliance’s role in the international legal system.



Full Text.