The Performance of International Courts
By Nicole De Silva, Research Fellow, University of Oxford
On 8-9 October 2015, PluriCourts and Temple University held a workshop on The Performance of International Courts, a forthcoming book edited by Theresa Squatrito, Oran Young, Geir Ulfstein, and Andreas Føllesdal, and published by Cambridge University Press. The project is motivated by the expansion of international courts and tribunals in recent decades, and the apparent variation in their performance. These developments raise several questions regarding how to conceptualize and measure international courts’ performance, what explains variation in their performance, and whether there are ways to improve their performance.
To address these questions, the editors have developed a novel framework that conceptualizes performance in two dimensions (process and outcomes) at three (micro, meso, and macro) levels of analysis. The process and outcome distinction builds on earlier work on the performance of international organizations by Tamar Gutner and Alexander Thompson, but is specified to international courts’ mandates. Process performance, therefore, focuses on procedural aspects of adjudication, with baselines concerning fairness and efficiency. Outcome performance relates to the outputs of international courts’ activities in terms of dispute settlement, compliance, and clarification of the law. The three levels of analysis recognize that international courts’ performance can be analyzed based on individual cases (micro-level), regimes/issue areas (meso-level), and the international system (macro-level).
The workshop brought together the book’s various contributors, from both political science and international law, to discuss their chapters that operationalize the framework and consider different aspects of the performance of international courts. Some chapters evaluate the performance of international courts in particular issue areas, while others present original research on the performance of international courts.
Variation in performance across issue areas
The first part of the workshop focused on the chapters assessing international courts’ performance in the environment (Ruth Mackenzie), human rights (Dinah Shelton), international trade (Cosette Creamer and Anton Strezhnev), investment (Daniel Behn), and international criminal justice (Nobuo Hayashi). It became clear that there is significant variation in international courts’ performance in different issue areas and regimes, but participants often noted the difficulty in systematically comparing across various regimes, given their unique features.
In virtually every issue area, there are multiple international courts that could contribute to performance. In trade, there is obviously the World Trade Organization Dispute Settlement Understanding, but there are also regional trade courts to consider. Similarly, in human rights, the most salient international courts are those in the three regional systems (the African Court on Human and Peoples’ Rights, European Court of Human Rights, and the Inter-American Court of Human Rights), but there are also other international courts (especially sub-regional/regional integration courts) that deal with human rights issues.
Some issue areas seemed quite unique and made comparisons of international courts’ performance challenging. For example, participants debated whether international criminal courts fit into the framework, as they deal with individual criminal responsibility, rather than international disputes. Evaluating international courts’ performance on environmental issues was also difficult, as there are no courts dedicated to the environment, but rather courts that receive some cases involving environmental issues and law (e.g. the International Court of Justice, International Tribunal for the Law of the Sea, etc.). Similar issues arise in the area of investment. Workshop participants debated whether there is an investment regime at all and considered how to manage the challenge of assessing performance in the context of decentralized investor-state arbitrations.
Original research contributions
The second part of the workshop discussed the chapters making original research contributions on the performance of international courts. My chapter elucidates international courts’ socialization strategies for influencing not only their process and outcome performance at the three levels of analysis, but also their stakeholders’ perceptions of courts’ performance. Hyeran Jo, Mitchell Radtke, and Beth Simmons’ chapter on the International Criminal Court analyzes its outcome performance based on its ability to deter civilian deaths in Uganda. Jeff Dunoff and Mark Pollack’s chapter argues for studying performance in terms of international judicial practices, focusing particularly on differing practices of judicial dissent in the Court of Justice of the European Union and European Court of Human Rights. Benjamin Faude’s chapter analyzes how fragmentation affects the performance of international courts, while Steinar Andresen’s chapter considers how the problem structure of particular regimes influences the performance of international courts. These diverse research contributions elucidated the framework’s value and versatility for studying the performance of international courts.
Challenges related to measurement and methods
Finally, the workshop held a discussion on empirical research on international courts, with a focus on the book’s chapter on measurement and methods (Theresa Squatrito). While the framework chapter systematically conceptualizes performance, operationalizing and measuring particular indicators can be challenging. Participants discussed the importance of conceptual clarity, as well as the use of mixed methods and data triangulation in empirical research on international courts. Even with these “best practices” in mind, participants recognized the difficulties with causal inference and attributing particular outcomes to international courts rather than other actors and phenomena. For example, with dispute settlement in the WTO, where states are encouraged to negotiate throughout proceedings, it is unclear to which extent the settlement of a dispute can be attributed to the Dispute Settlement Understanding or the negotiating parties. Causal inference was thought to be especially challenging at higher levels of analysis.
The two-day workshop thus addressed a wide range of issues involved in studying the performance of international courts. Bringing both political scientists and international legal scholars together to debate these issues served the more general interest of cross-fertilization between disciplines. It became clear that, for many questions regarding the performance of international courts, interdisciplinary collaboration is not only fruitful but, in some instances, necessary—an insight that is consistent with broader developments in research on international courts.