International tribunals: a rational choice analysis.

• Author: Guzman, Andrew T.

In well-functioning domestic legal systems, courts provide a mechanism through which commitments and obligations are enforced. A party that fails to honor its obligations can be brought before a court and sanctioned through seizure of person or property. The international arena also has courts or, to expand the category somewhat, tribunals. These institutions, however, lack the enforcement powers of domestic courts. How, then, do they work, and how might they work better or worse? The first objective of this Article is to establish that the role of the tribunal is to promote compliance with some underlying substantive legal rule. This simple yet often-overlooked point provides a metric by which to measure the effectiveness of tribunals. But a tribunal does not operate in isolation. The use of a tribunal is one way to resolve a dispute, but reliance on diplomacy and other traditional tools of international relations is another. Furthermore, even if a case is filed with a tribunal, there may be settlement prior to a ruling and, even if there is a ruling, the losing party may refuse to comply. Understanding international tribunals, therefore, requires consideration of the entire range of possible outcomes to a dispute, including those that do not involve formal litigation. The second goal of this Article is to develop a rational-choice model of dispute resolution and tribunals that takes this reality into account. The third goal is to explore, based on the above model, various features of international tribunals and identify those that increase effectiveness and those that reduce it. Finally, the Article applies the analysis to help us understand two prominent tribunals: the World Trade Organization's Appellate Body and the United Nations Human Rights Committee.

INTRODUCTION I. WHAT DO TRIBUNALS DO? A. Courts Without Coercion B. The Influence of Information C. Why Is a Tribunal Necessary? D. Strategic Tribunals II. TRIBUNALS AND EFFECTIVENESS A. What Is a Tribunal? B. What Is an Effective Tribunal? C. What Is a "Binding" Ruling? III. A THEORY OF DISPUTE RESOLUTION A. Politics B. Litigation C. Settlement D. Politics and Litigation IV. EFFECTIVENESS AND THE DESIGN OF AN INTERNATIONAL TRIBUNAL A. Tribunal Design and Effectiveness B. How and Why Does Quality Matter? C. Should Tribunals Be "Independent"? D. Should Tribunals Be Authorized to Impose Remedies? E. Should the Votes of Judges Be Public and Should Dissent Be Allowed? F. Extending the Model 1. Should There Be a Mandatory Consultation Period? 2. Should Jurisdiction Be Mandatory? 3. Should Tribunals Constrain the Use of Politics? V. TWO TRIBUNALS A. The (Almost) Full Monty: The WTO Appellate Body B. The Power Grab: The United Nations Human Rights Committee CONCLUSION INTRODUCTION

International dispute resolution and international tribunals are all the rage. (1) On the one hand, many international lawyers celebrate them as a powerful tool in the effort to bring order to our anarchic world. (2) On the other hand, critics view these tribunals--perhaps inconsistently--as both a threat and a waste of resources. (3)

This debate is both lively and important. It has proceeded, however, with a very thin theory of what international tribunals do and why they work (or fail to work). We lack a well-developed and tractable analysis of what international tribunals can or should achieve, how they can or should affect state behavior, or even what it means for a tribunal to be effective. Until such questions are sorted out it is unlikely that any form of consensus can emerge on the role of international courts and tribunals.

These institutions are important to the international legal system. To begin with, they are a useful tool for the peaceful settlement of disputes. Secondly, their decisions clarify international law in important ways and, although usually not formally binding on states not party to a dispute, they establish a form of de facto international common law. Furthermore, tribunals are politically salient because disputes are often played out in a (relatively) public context. The presence of a tribunal can raise the stakes for the political leaders of the states involved. Finally, an understanding of tribunals is critical to a more general understanding of international law, both as it currently exists and as it will develop in the future.

This Article presents an analysis of what it means for tribunals to be effective and how they impact states. It considers how these institutions fit within the larger set of state interactions and describes the situations in which international tribunals can play a role. It explicitly accounts for both the absence of formal enforcement schemes and the potential for states to disregard the work of these bodies.

Methodologically, the Article uses a rational-choice approach, meaning that states are assumed to be rational, self-interested, and able to identify and pursue their interests. (4) State interests are a function of the preferences of states, which are assumed to be given, or exogenous, and fixed. The analysis is institutionalist in approach, and so differs in its underlying assumptions both from the traditional realist approach advanced by, for example, Mearsheimer, (5) and from the liberal theory approach adopted by, for example, Heifer and Slaughter. (6) Realists build a hostility to cooperation among states into their models of international interaction by assuming that states care mostly, and perhaps only, about relative gains and losses. (7) As a result, even when cooperation makes all parties better off, it will likely be frustrated because some of the parties will gain less than others and will therefore refuse to participate. The institutionalist approach taken in this Article assumes instead that states are interested in absolute gains. It is well-established that international cooperation is possible under these assumpuons. (8) Liberal theory seeks to "deconstruct" the states and focus on substate actors. There is no doubt that domestic politics influences state behavior, so there is a strong argument to be made for taking it into account. The difficulty is that we lack good models of domestic politics that can be applied to the general question of how tribunals affect international behavior. (9)

Though the vast majority of international legal commitments come without mandatory dispute-resolution provisions, a number of international bodies have jurisdiction to adjudicate disputes among states or between states and private parties. (10) The best known of these are the International Court of Justice (ICJ), (11) the World Trade Organization (WTO) and its mandatory dispute-resolution system, (12) the European Court of Human Rights, (13) the International Tribunal for the Law of the Sea (ITLOS), (14) and arbitration bodies such as the International Centre for Settlement of Investment Disputes (ICSID). (15)

The structure of these and other dispute-resolution systems varies considerably. For instance, decisions of the ICJ are binding only on the parties litigating the case. (16) In contrast, all members of the ICSID are required to recognize and enforce all arbitral awards. (17) The WTO system establishes a right to appeal a decision, whereas most other dispute settlement systems do not. (18) The ITLOS tribunal, the ICJ, and the WTO Appellate Body have permanent judges, while WTO panels and arbitral approaches typically feature the ad hoc appointment of judges or arbitrators.

The diversity of approaches to dispute resolution provides a challenge. Highly contextualized analysis can generate a more accurate portrait of a single institution but makes it difficult to extract lessons applicable across a range of dispute settlement strategies. A more abstract approach, on the other hand, promises more general lessons but may omit important features of tribunals that are critical to how they function. This Article seeks to shed light on the general working of tribunals rather than on a single institution, and so it adopts a fairly general theoretical approach. This strategy is not hostile to a more particularized approach. Rather, the two methods complement one another; undoubtedly both are required to advance our understanding of international tribunals. Indeed, Part V of this Article looks more closely at two specific tribunals both to contextualize the analysis and to illustrate how we might apply lessons of the Article in particular cases.

Even at a general level, however, tribunals vary sufficiently enough that the theoretical tools used herein cannot address their full range of diversity. Where the assumptions required for the analysis are inappropriate, the relevant tribunals must be put to one side. This is the case for three categories of tribunals.

First, this Article does not consider international tribunals before which the defendants are individuals. These include, for example, the International Criminal Court and the International Criminal Tribunals for the former Yugoslavia and Rwanda. These tribunals have access to coercive enforcement power over defendants, which makes their operation fundamentally different from the tribunals studied here.

Second, the European Court of Justice (ECJ) is put to one side for purposes of this analysis. Because of the peculiar structure of the European Union (EU), interactions among EU member states in some ways resemble the interactions among the fifty United States more than they resemble cooperation among sovereign states. Furthermore, the level of integration achieved within the European Union is unprecedented, and the costs of systematically failing to behave cooperatively within that framework are very high. Conceivably, the theory developed here could be applied to the ECJ because the basic theoretical structure is relevant. I prefer to exclude this tribunal from the discussion because the magnitudes of the payoffs are quite different from those of other...