Examining detailed case studies of the International Court of Justice and the transition from the General Agreement on Tariffs and Trade to the World Trade Organization, Leslie Johns finds that a court’s design has nuanced and mixed effects on international cooperation. A strong court is ideal when laws are precise and the court is nested within a political structure like the European Union. Strong courts encourage litigation but make states more likely to comply with agreements when compliance is easy and withdraw from agreements when it is difficult. A weak court is optimal when law is imprecise and states can easily exit agreements with minimal political or economic repercussions. Johns concludes the book with recommendations for promoting cooperation by creating more precise international laws and increasing both delegation and obligation to international courts.
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Strengthening International Courts
The Hidden Costs of Legalization
By Leslie Johns
The University of Michigan PressCopyright © 2015 Leslie Johns
All rights reserved.
In October 2007, Jose Ernesto Medellin waited on death row while his lawyers pled before the United States Supreme Court. Medellin, a Mexican national, had been sentenced to the death penalty in a Texas court without assistance from the Mexican government. After exhausting the appeals process in Texas, Medellin's lawyers went to the Supreme Court with a new argument. A recent ruling by the International Court of Justice, they argued, entitled Medellin to further judicial review because the United States had violated international law. Medellin had an unlikely ally in his case: President George W. Bush.
Medellin's Supreme Court hearing came after three cases and six years of litigation at the International Court of Justice (ICJ) in the Hague. Multiple countries sued the United States, arguing that it violated international law by arresting, convicting, and sentencing foreign nationals to the death penalty without notifying their home consulates. In a series of rulings, the ICJ progressively strengthened its own authority and imposed stricter requirements. The United States government tried to implement the initial rulings, but these efforts did not appease the ICJ. After the third lawsuit, the ICJ ordered the United States to provide new judicial reviews of all the criminal cases. President Bush took two unexpected steps: he ordered state courts to reopen the criminal cases and then, seven days later, he withdrew the United States from ICJ jurisdiction.
Just as the ICJ pushed Bush too far, Bush pushed Texas too far. Texas refused to obey either Bush's executive order or the ICJ ruling. Texas ultimately prevailed. The United States Supreme Court found that ICJ rulings are not enforceable in United States courts and that President Bush lacked the authority to order state courts to review the cases. Medellin was executed a few months later.
Years later, this case continues to raise provocative questions. Why did country after country sue the United States on the same legal questions? Why did President Bush act so dramatically against his own ideology — by ordering state courts to reopen death penalty cases — to comply with international law? Why did Bush work so hard to follow the court's ruling, only to exit its jurisdiction seven days later? The unlikely alliance of Medellin and Bush drew extensive media attention, but this case is just one small example of the many ways in which international law and courts shape politics.
Globalization and transnational social movements have made the world more connected. In recent years, foreign investment has surged to new heights and domestic economies have become tightly enmeshed. And money isn't the only thing that is traveling across borders. There has been dramatic growth in the trade of goods and services, and international migration has expanded to unprecedented levels. At the same time, individuals and interest groups have growing social concerns that cross borders, including environmental regulation and respect for both human rights during times of peace and humanitarian law during times of war.
This growing interconnectedness has created new opportunities for international cooperation, but it has also destroyed the good fences that make good neighbors. More foreign investment creates more temptation for a government to expropriate private property. More financial integration opens the door to contagion, in which the financial problems of one country spill over to others, snowballing in size and importance. More international trade can provoke more trade disputes. And more respect for human rights and humanitarian law puts more pressure on leaders to prevent and punish violations that are committed by the leaders of other sovereign nations.
States have responded to these global opportunities and challenges by legalizing international relations. In the economic realm, states have written a plethora of bilateral investment treaties and created institutions to protect intellectual property rights. Many countries are now coordinating financial regulation through international agreements like the Basel III Accord. And states use international law to promote and regulate trade, both through the World Trade Organization and preferential trade agreements. These trade agreements also promote social objectives, such as human rights, environmental regulation, and labor protection. In the social realm, the international community has created the International Criminal Court to prosecute war crimes and human rights violations. States have also begun to use civil courts, like the International Court of Justice, to challenge military actions in the former Yugoslavia, Rwanda, and the Democratic Republic of the Congo. The list goes on and on.
International law is a body of rules that creates expectations about appropriate behavior. These rules specify how a government should behave in its interactions with other governments, foreign firms and individuals, and, increasingly, its own citizens. These rules vary in their precision, ranging from informal understandings to detailed international agreements.
Many written agreements have dispute settlement procedures (DSPs), which specify how states should resolve disputes about the interpretation or application of the agreement. We can describe these DSPs along two dimensions. First, dispute settlement procedures vary in delegation, which is the authority of a third party to adjudicate disputes. At one extreme, some DSPs don't grant any authority to a third party. States are still expected to negotiate in good faith, but they do so without any third party assistance. DSPs with some delegation allow a third party to serve as a mediator, and DSPs with even more delegation allow an individual or panel of third parties to hear facts and legal arguments and issue recommendations. DSPs have the highest level of delegation when they grant jurisdiction to an international court.
Second, dispute settlement procedures vary in obligation, which is the normative or instrumental pressure to abide by a DSP ruling. From a legal perspective, international agreements can vary in their "bindingness." Some agreements are hortatory and specify what members should do without creating a legal commitment, while others create legally binding commitments about what a state must do. From a political perspective, international agreements and courts elicit varying levels of political pressure on leaders to comply. This pressure can be created by both international and domestic actors. Of course, the anarchic nature of international politics ensures that a state can never be forced to comply with a treaty rule or implement a court ruling. Compliance is always a challenge in international cooperation (Simmons 2010). Some scholars argue that states have an inherent propensity to comply with rules (Chayes and Chayes 1993), while others argue that states comply when they are pressured to do so by domestic interest groups or other states (Johns 2012; Simmons 2009). Regardless of why states comply (or don't), DSPs vary in their ability to change state behavior through normative and instrumental pressure.
Scholars and policy-makers use many different names to describe dispute settlement procedures, often with little rhyme or reason. They are sometimes called courts, adjudicatory bodies, arbitral bodies, quasi-judicial bodies, legal bodies, dispute settlement bodies, legalized dispute settlement bodies, dispute settlement mechanisms, dispute settlement systems, ... this list too goes on and on. Additionally, many institutions without "court-like" names perform "court-like" functions. For example, the Human Rights Committee hears disputes about alleged violations of the International Covenant on Civil and Political Rights, a human rights treaty, and then writes a document that contains its own interpretation of the facts and legal arguments. The proliferation of international agreements and institutions and the lack of consistency in their names means that there are no standard labels that we can use to organize and distinguish between these DSPs. Legal scholars have only recently begun to create taxonomies for these institutions (Romano 1998, 2011).
Rather than trying to impose order where there is little, I use the term "court" to refer to any institution that resolves disputes about the interpretation or application of an international agreement. I adopt this convention because all of these institutions differ in their powers, but not their purpose, and it is the simplest way to present my argument to readers who are not international law experts. Under this schema, we can think about how changes in the design of a court lead to changes in state behavior. In this book, a "weak court" has limited authority to rule (low delegation) and elicits little pressure on states to implement its rulings (low obligation), while a "strong court" has clear authority to rule (high delegation) and elicits intense pressure to implement rulings (high obligation). A court grows stronger if delegation or obligation increases, while a court becomes weaker if delegation or obligation decreases.
The legalization of international politics has drawn fire from some critics. In 2001 former United States Secretary of State Henry Kissinger described legalization as a "revolution" in the Westphalian conception of state sovereignty. He argued: "advocates [of international courts] trust jurists more than they do statesmen. The advocates of the Westphalian principles trust statesmen more than jurists" (Kissinger 2001, 235, 237). Kissinger does not stand alone. Other critics of legalization believe that strong courts can hinder cooperation by constraining sovereignty and creating a backlash against international cooperation (Goldstein and Martin 2000; Helfer 2002; Posner and Yoo 2005; Rosendorff 2005; Rosendorff and Milner 2001). They can point to the experience of the International Court of Justice (ICJ). Since its creation in 1946 as the main judicial body of the United Nations, the ICJ has been a relatively weak institution. As jurists have asserted stronger powers for the ICJ, many countries, including the United States, have left the Court's jurisdiction or withdrawn from their treaty obligations rather than follow the Court's rulings.
In contrast, supporters of legalization believe that it facilitates cooperation by enhancing compliance with international law. Some also argue that legalization is inherently good because it makes international politics more fair (Franck 1998), and a few believe that legalization will ultimately create a system of global justice that upholds liberal values (Slaughter 1992, 1995). Supporters can point to the multilateral trade regime. From the 1947 General Agreement on Tariffs and Trade (GATT) to the contemporary World Trade Organization (WTO), international trade has grown more legalized. At the same time, tariffs have fallen, trade flows have become less volatile, and the membership of the GATT/WTO has expanded (Goldstein, Rivers and Tomz 2007; Mansfield and Reinhardt 2008; Tomz, Goldstein and Rivers 2007). While states do not always fully comply with WTO law, the dispute settlement system of the WTO is arguably the most successful international court ever.
1.1 My Argument
In this book, I take an intermediate stance and show that there is truth in the arguments of both critics and supporters of legalization. I believe that as globalization and social movements make our world more connected, states have more opportunities to cooperate, benefitting both themselves and the global community. However, cooperation creates opportunities for conflict. International law and courts can play an important role in resolving these conflicts, but this does not mean that international law is an unmitigated good. Legalization comes with hidden costs.
At its core, my argument is about uncertainty. Suppose two states are involved in a dispute. Regardless of the design of an international court, there will always be some uncertainty about how the court will rule. This uncertainty can come from disagreements about what a law requires or the facts of a given case. For example, GATT/WTO members are allowed to raise tariffs if a domestic industry is harmed by a subsidized import. Yet two members may disagree about the legal interpretation of the term "subsidy" or how much harm the industry must experience. Even if two members agree about the interpretation of the law, they may be uncertain about basic facts of the case, such as the actual magnitude of harm to the industry.
When there is low delegation to a court, it is unlikely to issue a substantive ruling. Uncertainty about the law and facts therefore plays a small role in state decision-making. When delegation increases, the court is more likely to rule on a case and uncertainty about how the court will rule becomes more important.
Similarly, when there is low obligation to the court, winning or losing a ruling will only generate slight pressure, so the stakes of a trial are relatively small. But when obligation increases, a substantive court ruling will elicit more pressure and thus have a larger impact on final political outcomes, so the stakes of a trial increase. Once again, uncertainty about how the court will rule becomes more important.
Uncertainty creates bargaining failure. When two disputants know how a court will rule, they can negotiate a settlement that they both prefer to litigation. However, if states are uncertain about how a court will rule, then they are less likely to reach a pre-trial settlement. As a court grows stronger, through higher delegation or obligation, uncertainty about how the court will rule becomes more important and it is harder for states to negotiate an early settlement. This is the first hidden cost of legalization: when a dispute occurs, delegation and obligation magnify the importance of uncertainty and states are less likely to reach pre-trial settlements.
The design of an international court also affects the likelihood of disputes. When a state decides whether to comply with a cooperative agreement, it knows that other states that are harmed by noncompliance can use the agreement's dispute settlement procedures. States decide whether to comply in the shadow of international law. When delegation or obligation increase, the expected cost of violating a cooperative agreement increases. If a state wants to benefit from future cooperation, compliance becomes more attractive relative to noncompliance. Supporters of legalization are partly correct because strong courts facilitate compliance. This is the primary benefit of legalization: delegation and obligation increase compliance with cooperative agreements.
However, sometimes a political leader will face tough times and be unable or unwilling to comply with her state's legal commitments. Dispute settlement procedures provide such states with an escape mechanism: they can temporarily violate their commitments and then engage in dispute settlement. But delegation and obligation increase the cost of this tactic. When leaders face tough times, it may be easier to simply leave the cooperative regime than to bear the cost of formal dispute settlement. Critics of legalization are also partly correct because strong courts reduce stability. This is the second hidden cost of legalization: delegation and obligation increase the likelihood that a state will exit a cooperative agreement, which reduces stability.
Strong courts have a mixed impact on international cooperation. The optimal design of a court is ultimately determined by how an institutional designer evaluates the trade-offs between promoting compliance, on the one hand, and reducing settlement and stability, on the other. Nevertheless, my argument has two major implications for the design of strong courts. First, an institutional designer can offset the negative effect of delegation and obligation on pre-trial settlement if she reduces uncertainty about how the court will behave. So increased delegation or obligation to a court should be accompanied by increased precision of the law. Second, an institutional designer can ameliorate a strong court's impact on stability if she raises the cost of exit from the treaty regime. One way to do this is to nest a strong court in a political context that makes exit difficult, such as the European Union and the World Trade Organization.
Excerpted from Strengthening International Courts by Leslie Johns. Copyright © 2015 Leslie Johns. Excerpted by permission of The University of Michigan Press.
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Table of ContentsContents List of Tables List of Figures Acknowledgments 1. Introduction 2. Rational Institutions and International Law 3. Theoretical Argument 4. Strengthening the International Court of Justice 5. Strengthening the GATT/WTO Dispute Settlement System 6. Designing International Courts A. Appendix Notes References Index