Effectiveness of international adjudication: assessing functions and performance.

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The panel was convened at 10:45 am, Thursday, April 10, by its moderator, Yuval Shany of the Hebrew University of Jerusalem, who introduced the panelists: Joan Donoghue of the International Court of Justice; Victor Peskin of the School of Politics and Global Studies, Arizona State University; Sivan Shlomo-Agon of New York University Law School; and Geir Ulfstein of the University of Oslo.

INTRODUCTORY REMARKS BY YUVAL SHANY *

I am pleased to open this session on the effectiveness of international adjudication, a topic of growing relevance and significance which grew out of the interest in proliferation or multiplication of international courts and the higher profile assumed by international courts in international life. Indeed, we have seen in the last 25 years a sharp rise in the number of international courts and an expansion of the scope of their jurisdiction, subjecting numerous international transactions to international rule of law institutions.

Still, we have anecdotal evidence suggesting that, at least in some contexts, the impact of international jurisdiction and international adjudication has been modest. International court decisions have not always been promptly or fully implemented, and states and issues put under the authority of international adjudication have not necessarily changed problematic practices because of the availability or intervention of international courts. For instance, international criminality remains rampant in many country situations subject to the jurisdiction of the ICC. Moreover, we continue to ask ourselves at this Annual Meeting and at other conferences whether international law is effective. In other words, it may be possible that in our fascination with the phenomenon that more international disputes than ever before can and may be adjudicated, we have neglected to ask whether and to what extent international adjudication actually contributes to the effectiveness of international law. Could it be that we are more interested in the studying the means to the end, rather than whether the end has in fact been attained?

It is against this background that I established in 2008 a research group with the generous support of the European Research Council Frontier Research program, two former members of which--Dr. Sivan Shlomo-Agon and Dr. Victor Peskin--are here with us on the panel. The research group critically examined the existing literature on international court effectiveness that focused mostly on compliance with judgments and rates of submission to adjudication, and proposed that such measures can only give us, at best, a partial understanding of judicial effectiveness. This is because cases that do not reach adjudication--but that are influenced by adjudication, that is, by the "shadow of adjudication"--may be as important to understanding the impact of international courts as cases that were actually adjudicated. Moreover, compliance with international judgments is a poor proxy for international courts' effectiveness, as it may stand in inverse proportion to the potential impact of the judgment in question. Judgments offering a modest change of reality may generate more compliance but less impact than far-reaching landmark judgments that may revolutionize international law and have a long-lasting effect.

Instead, the research group proposed to evaluate judicial effectiveness on the basis of a goal-based approach that was developed from organizational studies in sociology positing that an effective organization is one that fulfills its goals within a defined period of time. We then moved to identify some generic goals of adjudication, such as supporting legal norms, implying law implementation and development, resolution of disputes and problems, support of institutional regimes and legitimization, and court-specific goals such as promoting reconciliation or harmonizing law across regimes. For that purpose we studied the constitutive texts of treaties which reflect the goals set by the member states and/or sponsoring international organizations--the mandate providers--as well as goals implicitly derived from the court's structure and procedure. Perhaps our main conclusion was that one cannot speak in general terms about effective international courts. Instead, we should talk about effectiveness in attaining certain goals--which may come at times at the expense of other goals. (1)

We move on now to our panel presentations, which are not wedded to the goal-based model, but which will, I hope, take it into account when considering the question of effective international adjudication, which is court-specific or focused around a family of courts.

* Hersch Lauterpacht Chair in Public International Law and Dean, Faculty of Law, the Hebrew University of Jerusalem.

(1) For a fuller account of these and other conclusions, the methodological problems we encountered, and the building blocks of effective adjudication, I refer you to the book I have written, with the help of six members of my research group, on assessing the effectiveness of international adjudication, Assessing the Effectiveness of International Courts, Oxford University Press, 2014).

THE EFFECTIVENESS OF THE INTERNATIONAL COURT OF JUSTICE

By Joan E. Donoghue *

My focus on today's panel is the effectiveness of the International Court of Justice (ICJ), where I serve as a judge. When I give lectures about international adjudication in the United States and elsewhere, I am often asked how states have responded to judgments of the ICJ. Does the losing state usually comply? And if it does not do so, what are the consequences?

A partial answer to these questions is that scholarly studies indicate that compliance with ICJ judgments is quite good: there has been compliance with perhaps three-fourths of the Court's judgments, depending on how one categorizes various situations. (1) One can also point to Article 94 of the Charter of the United Nations, which provides for recourse to the Security Council action in the event of non-compliance with an ICJ judgment, but it is necessary to add that in practice this mechanism is not used by prevailing states.

When I give these sorts of answers, audience members often look unsatisfied, and so am I. This unease has increased my interest in looking more deeply into questions about the effect of the Court's judgments on state behavior. For example, are ICJ judgments effective in bringing about the peaceful settlement of disputes between the two states that are before the Court in a case? And, looking beyond the parties to a particular case, what do we know about the more general effect of ICJ judgments on the behavior of states? Do states that are not parties to a case take account of ICJ legal pronouncements? To what extent does the spectre of ICJ adjudication shape state behavior?

My reflections about these questions and my forays into the existing literature have led me to conclude that, at present, we practitioners and scholars of international law are not well-equipped to answer these questions. Too much of what we have to say sounds simply like truisms. For example, I am among those who have asserted that states that are not parties to a particular case take account of ICJ pronouncements on the law, but to what extent is such an assertion a product of a broader belief system about the influence of international law on state decisionmaking? An attempt to prove or disprove the assertion might point towards empirical analysis, but there we encounter a number of difficulties, including the non-transparency of state decisionmaking and the fact that sample sizes for a study of adjudication in a court like the ICJ are very small.

So, as you can see, the questions I get from audiences might at first blush seem to call for a simple "yes or no" answer: Do or don't states comply with ICJ judgments? However, they lead us into something of a thicket, at the center of which is the question about how effective the ICJ has been in shaping state behavior. To avoid disappointing you, I shall tell you now that I am not going to answer this question today. Rather, I am going to pose four specific questions to the audience, in the hope that I can motivate some of you to pursue the answers as part of your own research agendas.

Like other members of the panel, I am going to frame my remarks with reference to the goal-based approach to the effectiveness of international courts developed by Professor Shany. (2) Before I do that, however, I offer three comments about the context in which the effectiveness of the ICJ should be considered.

First, when we evaluate the effectiveness of an international court, we must be careful to set aside expectations that derive from training in our respective national legal systems. Members of U.S. audiences who ask me about compliance with ICJ judgments are familiar with a legal system in which the incentives to comply with a judicial decision are high and in which there are robust mechanisms to address non-compliance. Expectations derived from experience in that system, however, do not translate easily to an assessment of an international court. The ICJ has not been assigned a role comparable to that of national supreme court, most notably because it has jurisdiction only to the extent that states consent to it. But the dissimilarity is much deeper. The institutions that exist alongside a national court, which influence our ideas about a court's role in shaping behavior, simply do not have international corollaries. The ICJ may be known by the nickname "World Court," but it cannot be said that there is a world government. There is no world legislative or executive branch and, as is often said, there is no international sheriff. It follows that the mechanism whereby ICJ judgments influence state behavior must be different from the mechanisms operating within a national legal system.

Second, in the years since the establishment of the first World Court...

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