[Suzanne Katzenstein is a Visiting Assistant Professor at the Duke University School of Law.]
This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.
Thank you to Opinio Juris and the Harvard Journal of International Law for hosting this exchange and to Karen Alter for her thoughtful comments. My article’s central question is why governments create global international courts or, put more precisely, why some government attempts to create such courts succeed and other attempts fail. I evaluate all attempts at international courts that I could identify that reached the multilateral treaty negotiation or treaty drafting stage. This amounted to four successful and seven failed attempts at establishing courts invested with general jurisdiction or relating to international criminal law, the law of the sea, and human rights. The dominant explanation for the creation of international courts focuses on the functional incentives of governments, such as the need to overcome collective action problems or to signal credibility. I argue that the functional explanation provides insufficient insight into the successes and failures of the proposals I study. I evaluate two additional explanations. The first focuses on the preferences of the most powerful states, the UK and the US. I propose a second that emphasizes the role of legal crises and international lawyers. During periods of legal crisis, governments are more willing to cooperate with one another in order to bring stability back to the legal and political order; and they are also more receptive to the proposals for international courts made by international lawyers. Neither the power nor the crisis argument fully explains the eleven attempts analyzed in the article. Not surprisingly, history is too complex. But taken together, the two explanations provide substantial insight into ten of the eleven cases, and into the creation of international courts across the 20th century.
Alter rightly notes that I define international courts and tribunals narrowly—as only those institutions that are open to any state to join. This means I exclude both regional and
ad hoc criminal tribunals. I do so not only for the sake of feasibility but also because I assume that state concerns about protecting their sovereignty are distinct in those contexts. States, for instance, retain more control over the design and operation of regional than they do of fully international courts (for example in the area of judicial appointments), and most state officials are not subjected to the jurisdiction of the
ad hoc criminal tribunals they help create. In addition, current scholarship, including Alter’s own work, persuasively shows that the creation of regional courts has been influenced both by region-specific dynamics as well as cross-regional emulation.
I make three other important definitional and scope choices. I study only those proposals that reach the multilateral treaty drafting or treaty negotiation stage. These attempts seemed to have a real chance at succeeding. I define “success” as courts with treaties that actually entered into force. Finally, I also exclude tribunals that deal solely with economic disputes, such as trade and investment disputes. Here, my assumption is that powerful states—those with the largest markets—enjoy unique bargaining leverage during negotiations.
