Private vs. Public Action in International Tribunals

In his Roundtable Post, Kal Raustiala raises questions relating to one important aspect of the design of international tribunals: who get’s the ball rolling, or in other words – who has standing and the right to bring a suit to the tribunal. I agree with his basic distinction between private actors as “fire alarms” (or whistle blowers) and states as “police patrols” (though the distinction is blurred a bit when one acknowledges the complex public/private partnerships that arise in some international litigation (especially in trade)).

I believe this issue is one determinant of the normative power international judiciaries may wield in relation to the state-based international political processes. In past work I’ve placed it on a slightly broader spectrum that runs from “supra-consent” based jurisdiction (where jurisdiction requires the consent of all the states in the system, not just complainant or respondent (as in the old GATT system)) – and “Supra-compulsory” jurisdiction. The latter is the case where jurisdiction applies without requiring the specific consent of any state actor, as in investment protection treaties, where state consent to arbitration is given en banque in advance, or the proprio motu authority of the ICC Prosecutor, where applicable.

The closer a tribunal is to the latter end of the spectrum, the less control states have over case-selection and political filtering, the less ability they have to reach compromises (think of the Softwood Lumber cases – one (though not the only) reason for the inability to consummate the recently negotiated US-Canada compromise, is the Chapter 11 private actions pursued by Canadian lumber companies – making them not only political stakeholders but formally necessary parties for a settlement). I speculate that with private standing, more sensitive and controversial cases will reach the docket, granting tribunals more judicial space. Also, where actions are private, states can’t select the arguments they make strategically (considering their own legal vulnerabilities, for example). For these and other reasons, a tribunal that entertains private actions will have greater independence from the state system and more power to establish norms than a state-based one. The extent to which a tribunal uses or abuses this power would depend on a whole range of other factors, including its sensitivity to its own legitimacy. There is something tempting, however, about the thought that private action courts are inherently more legitimate than state-based ones, by empowering the individual on the international level. Forms of private standing in EC tribunals have no doubt contributed not only to the effectiveness of EC law, but also to its legitimacy.

As to explaining when states choose to establish “supra-compulsory” tribunals with private standing, Alan Sykes has an interesting working paper explaining the difference between investment protection treaties (lots of public standing) and trade dispute settlement (no private standing) on the basis of signalling. To simplify, in BITs, states want to signal to foreign private investors, to attract investment; establishing an enforcement mechanism with private action enhances the credibility of the signal. In trade, states want to signal to states – that they are providing market access in exchange for reciprocal market access. Hence, the individual (or rather, the foreign exporter) is not a subject of signalling, and there is no need for private action in the enforcement mechanism to facilitate agreement.There might be some problems with this theory, e.g., I’m not sure it fits in with the historical development of BITs, and I recall that some empirical research has shown that BITs don’t really affect investment decisions ex ante, and so the signalling is in fact quite weak. But it is a very attractive explanation.

I am working on a paper that tries to apply and adjust this logic to human rights treaties (increasing expressions of private standing) and international humanitarian treaties (virtually no private standing). As in the trade-investment nexus, the gap in standing between the two enforcement systems (generally speaking) has led individuals to bring suits more naturally relevant to the area where standing is restricted, to the area where it is not (again, the Softwood Lumber Canfor arbitration is an example; Chechnya cases in the ECtHR are examples in the IHRL/IHL field – I think Larry Helfer might recognize this as a judicial form of “regime shifting”.

But can the Sykes explanation apply to IHRL/IHL? Who do states signal to in these treaties? Arguably, states enter human rights treaties to signal to their own nationals that their constitutional rights are secured (or hand-tied) at the international level. I appreciate that this explanation would not apply to all states, but I think it would apply well especially in those instances where private international standing has been most developed, e.g., in the European Human Rights system. In IHL, things are more complicated, and any thoughts would be appreciated. It might have been the case that states would want to signal to the protected persons of other states that their rights will be preserved, in order to incentivize them to abide by IHL rules. So, combatants would know that their POW rights would be preserved, civilians would refrain from taking up arms etc.. The military rationales of IHL would certainly benefit. So we might expect private action in IHL. However, the overarching doctrine in IHL (with limited exceptions) is that reciprocity is not a condition for compliance. Hence, perhaps – no need for private action. Also, in practice, oftentimes the individuals most injured by IHL violations – innocent civilians – are simply non-actors in their capacity to either abide by or violate IHL.

One possible presciption from this analysis is that IHL tribunals should entertain private actions from individuals who have not themselves violated IHL. That is, their substantive IHL rights would not rely on reciprocity, but their procedural rights would.

Enough for now, I have a plane to catch.