[opiniojuris] Monica Hakimi: Competition and Control in International Adjudication: A Response

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Posted by Monica Hakimi:
Competition and Control in International Adjudication: A Response
http://www.opiniojuris.org/posts/1201751563.shtml


   Jacob Coganâs [1]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 âmarketâ informationâi.e., information about the
   differences among courts, and about each courtâs strengths and
   weaknessesâto 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 âeffective controlâ over the relevant, wrongful acts. Then,
   in 1999, the ICTY suggested a shift in doctrineâto a more relaxed
   standard of âoverall control.â In 2007, the ICJ held its ground,
   rejecting the ICTY standard of âoverall controlâ and reiterating its
   standard of âeffective control.â Under Jacobâs 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. Jacobâs 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.
   Jacobâs 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. Jacobâs 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 functionsâthat hold courts in check and improve
   the quality of their decisions, without undermining their authority to
   make and clarify the law.

References

   1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1071184