Towards an international judicial system.

• Author: Martinez, Jenny S.

INTRODUCTION I. WHAT MAKES A JUDICIAL SYSTEM? A. Elements of the Emerging International Judicial System B. The Importance of "Common Law" or Judge-Made Procedural Doctrines C. Examples of System-Protective Doctrines 1. Rules related to overlapping or concurrent jurisdiction over disputes 2. Recognition and enforcement of judgments 3. Treatment of precedent 4. Relationship to political actors D. The Importance of Reasoning from Structure and Relationship II. THE ARGUMENT FOR AN "ANTIPAROCHIALISM CANON" A. What Kind of International Judicial System? B. Legitimacy: Why Should Courts Promote An Ordered International System? C. Feasibility and Relevance: Can Antiparochial Decisions By Courts Make a Difference? III. CONSTRUCTING AN INTERNATIONAL JUDICIAL SYSTEM A. Relationship Type 1: International Court--International Court B. Relationship Type 2: International Court--National Court C. Relationship Type 3: National Court--National Court D. Relationship Type 4: International Court--National Legislature/Executive E. Relationship Type 5: International Court--Other International Body F. Relationship Type 6: National Court--Government of Another Nation CONCLUSION INTRODUCTION

Is there an international judicial system? Talk of globalization is everywhere, (1) but it still comes as a surprise to many lawyers and scholars who do not specialize in international law to learn 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. (2) More legal professionals are aware, at least in some general way, that a large volume of disputes are resolved through binding international arbitration. National courts, too, are increasingly being called upon to apply International law and to interact with these international courts and with the courts of other nations.

Consider a handful of recent cases. The World Trade Organization Dispute Settlement Body considers whether U.S. regulations designed to protect endangered sea turtles violate free trade rules. The U.S. Supreme Court considers whether to stay the execution of foreign citizens at the request of the International Court of Justice. A French court decides whether it has the power to regulate websites in the United States that violate French law but are protected by the First Amendment to the U.S. Constitution. The International Criminal Tribunal for the former Yugoslavia considers whether to follow a precedent of the International Court of Justice on the issue of state responsibility for war crimes. On the surface these cases have little in common. If they were studied in law school, they would be studied in four separate courses; the first might come up in a class on trade or environmental law, the second in a course on criminal procedure, the third in a class on cyberspace, the fourth in a course on public international law. In fact, each case represents a facet of an emerging and interconnected international judicial system. Collectively they highlight the importance of giving attention to transsubstantive rules of process and procedure that govern relationships among courts involved in international adjudication.

But how do the pieces fit together? Mature judicial systems have highly articulated rules of procedure governing the relationships among courts. The table of contents of any book on federal jurisdiction and procedure gives a sense of the number of elaborate doctrines that govern the relationships between the U.S. federal courts, the state courts, and the executive and legislative branches of both federal and state governments. (3) Similarly complex rules govern, for example, the relationship between French judicial, administrative, and constitutional courts. (4) These rules can often be manipulated based on desired substantive outcomes, (5) and the rules themselves may be shaped by embedded social power dynamics. (6) But the fact remains, there are some rules. (7)

The relationships among international courts and between international courts and other international institutions, national governments, and domestic courts are considerably more ambiguous. In many situations, for example, it is as yet unclear what should happen when more than one court potentially has jurisdiction over the same case; unclear how one court should treat the decisions of another court; and unclear what should happen when courts reach inconsistent decisions. There is no "supreme court" capable of resolving conflicting interpretations of law by different courts, and of course, there is no unifying document like the U.S. Constitution or the Federal Rules of Civil Procedure to turn to for guidance. No international sovereign imposes order on the system.

Despite the lack of hierarchy, it is no longer possible to dismiss the topic of international adjudication with a version of the cynical critique that "international law is not really law" (8) along the lines that "international courts are not really courts." International courts are acting more and more like, well, courts: They are convicting people of international crimes and sending them to prison; (9) they are exercising compulsory jurisdiction over trade disputes; (10) they are enforcing the rights of individuals against governments. (11) Compliance with the decisions of international courts is not perfect, to be sure, but the reputational and other consequences of noncompliance are factors that political actors cannot simply ignore. (12) Moreover, in a world of global commerce and communications, national courts cannot avoid interactions with the larger world, and lawyers and scholars cannot ignore the transnational aspects of modern litigation.

While numerous books and articles discuss various developments in international adjudication, the field is still in its infancy. (13) Until very recently, "the international judicial process and organization has not been considered as a field of study in itself." (14) Scholars have just begun to turn their attention to the international judicial process and in a short time have made significant progress in identifying relevant phenomena and some of their implications. (15) However, this first generation of scholarship suffers from two shortcomings. First, much of it is quite fragmented. Many works focus on narrow aspects of the process--particular courts or particular legal issues such as human rights or trade--but few attempt to understand how all these pieces fit together transsubstantively. (16) Second, while this first generation of scholarship on the international judicial process identifies some positive examples of judicial cooperation in the emerging system and refutes the notion that the lack of hierarchy has resulted in chaos, it is more descriptive than normative. Against this background, this Article attempts, first, to begin the process of putting together a more unified, transsubstantive picture of the international judicial process as it now exists and, second, to offer a normative theory of the international judicial system and prescriptive guidance to courts on how to foster the development of the emerging system in a positive direction.

Part I of the Article introduces the problem. It begins by describing the factors that have led to the proliferation of international courts and the increased involvement of national courts in transnational issues--and discusses factors that make interaction among these courts inevitable. It then considers whether the growing network of courts can amount to a reasonably functional judicial system in the absence of any externally imposed hierarchy. The Article identifies four different categories of rules that are common to well-functioning judicial systems: rules related to concurrent jurisdiction, rules related to enforcement of judgments, rules related to precedent, and rules related to interactions with political bodies. It rejects the notion that such rules must be imposed from above in some sort of formal code and instead suggests that such doctrines are often created by courts themselves out of functional necessity.

Part II offers a normative framework to guide courts in crafting these sorts of rules for the international context. Just as in national judicial systems, such rules involve value-laden choices about the allocation of authority between local and centralized actors, between the judiciary and other branches of government, and between expert and nonexpert bodies. As difficult as these issues are at the international level, however, they cannot be avoided by leaving the choices unexamined. The Article contends that it is worth trying to come up with rules that work, because "[a] functioning system for solving disputes across borders serves many values, among them, predictability, fairness, ease of commercial interactions, and 'stability through satisfaction of mutual expectations.'" (17) These interests are, moreover, "common to all nations, including the United States." (18) At the same time, the Article argues that a high degree of centralization of power at the international level is not only infeasible in light of political reality but is undesirable normatively because it would have adverse effects in terms of democratic accountability. It argues that the way to balance these competing tensions is by applying an antiparochial, prodialogic canon when deciding procedural issues in transnational cases: Courts should wherever possible, choose a path that furthers the development of an ordered, functional international judicial system by fostering communication among participants in the system. This Part also addresses questions of legitimacy, relevance, and feasibility raised by the argument that courts should behave in antiparochial ways.

Part III elaborates on the structure of the emerging international judicial system, identifying six types of institutional relationships:

Type 1: International court--International...