The lecture was given at 9:00 a.m. on Thursday, March 30, by David D. Caron of the University of California at Berkeley School of Law. Moderating was Thomas Buergenthal of the International Court of Justice. Providing commentary was Christine Van den Wyngaert of the International Criminal Tribunal for the Former Yugoslavia.
FRAMING POLITICAL THEORY OF INTERNATIONAL COURTS AND TRIBUNALS: REFLECTIONS AT THE CENTENNIAL
By David D. Caron *
At the start of the last century, contributors to the American Journal of International Law often wrote of international arbitral tribunals (and, shortly thereafter, an international court) from the inside: they wrote of cases, of procedure and of substantive law. If one used the phrase "international court and tribunals," then everyone was in agreement that that meant interstate ad hoc arbitration, arbitration under the auspices of the Permanent Court of Arbitration, or, a few decades later, the Permanent Court of International Justice.
Today, arbitrators, foreign ministry officials, scholars, secretariats and non governmental organizations at locations around the world are designing and using courts and tribunals. They are considering creating a new court or tribunal, changing the rules of the game for one that exists, or arguing a particular case before another. They are doing this more than perhaps at any other time in history.
It should not be surprising therefore that the scholarly literature of the past decade in the Journal and elsewhere has not only been about cases and procedure, but also has attempted to understand this growth in courts and tribunals, to explain their variety, to assess their effectiveness and to think in systemic terms about their interrelationships. Yet, and perhaps not surprisingly, not only has the field of tribunals and courts grown but that shared assessment of what counted as a court and tribunal at the start of the last century has become quite murky, to say the least.
A theory requires some agreement about what is being explained or understood by the theory, yet present scholarship when attempting to theorize about courts and tribunals is rarely clear about the "what." Are all the courts and tribunals comparable? That of course depends on the question one is asking. But which are commensurate for which purposes? What are the functions of courts and tribunals? How can one seek to assess effectiveness, if one does not know the functions served by the institution? As the canary in the cave provided a signal of danger to miners, so does the existence of questions such as these signal the lack of an adequate framing theory for study of courts and tribunals.
A number of articles in usually a single breathless paragraph note that there are "now more than fifty international courts, tribunals, and quasi-judicial bodies, most of which have been established in the past twenty years," that international private arbitration is on the rise, and that national courts increasingly are faced with "applying international law." Perhaps these are just broad statements to emphasize the dynamic nature of the field and to convince the reader that the article is worthwhile. Yet, and this was particularly troubling, a leading U.S. casebook of International Law embraces a similar inclusionary approach. The chapter on international dispute resolution begins with the International Court of Justice, jumps to European Court of Justice, shifts from there to what starts as a historical section on interstate ad hoc arbitration but slides without explanation or distinction into an extended introduction to private commercial arbitration, the 1958 New York Convention with extracts of cases between two private parties, and from there progresses to NAFTA, the WTO and ends with the enforcement of foreign judgments in national courts.
In opposition to the decision to mention everything, some limit the scope of the field of courts and tribunals, for example, to where the court or tribunal is created by treaty. But is a focus on the legal nature of the constitutive document helpful or merely convenient? The growth of the tribunals certainly is not driven directly by whether it was created by a treaty, contract or statute, but by some broader set of impulses.
So as we move as scholars into building theories of courts and tribunals, we need inquire into the boundaries of the system to be explained, and, in particular, into the forces, the interests, and the actors that drive the system. When, if ever, are national courts a part of the field? When, if ever, are ICSID arbitrations, investor state arbitrations under national court supervision or private international commercial arbitration a part of the field? How should we think about the place of human rights institutions in contrast to those concerned with economic matters? Is it something about the subject matter of the dispute or nature of the parties to the dispute? Is it something about the institution?
Within the limits of this brief lecture, I offer what can only be a sketch of such a frame in which my prime object is to identify different generating impulses for courts and tribunals in the international arena. It is not an effort to theorize about which of several forms is chosen ultimately, but instead to understand the impulse to create a court or tribunal at all and therefore the contours of the phenomena we study.
By "courts and tribunals," I mean a set of institutions, whether they be anchored in public international law or national law, or be private arrangements reinforced by national law, that address disputes that may be of international significance. I have three points.
My first point is that courts and tribunals in the international arena are the manifestation of several, not one, phenomena and our understanding can be made richer by reference to different traditions of theory.
The existence and potential of courts and tribunals, as institutions, is determined in significant measure by the surrounding political context. Given this proposition, let us undertake a thought experiment as to the surrounding political context in which courts and tribunals arise.
The First Step: Anarchy and the Interstate Image
To begin our thought experiment, we draw on international relations and assume that a basic feature is the condition of anarchy; that is, a world of independent states and the absence of any overarching sovereign. This is the interstate image...