Reading 10: Shany
Shany, Yuval (2012). "Assessing the Effectiveness of International Courts: A Goal-Based Approach." American Journal of International Law 106: 225-270.
This article discusses selected social science approaches to organizational effectiveness and explains why a goal-based definition of effectiveness is suitable for evaluating international court performance. The proposed model offers new analytical tools for understanding the goals set for international courts by their mandate providers (the states and international organizations that create and supervise international courts) and for assessing how key concepts relating to the structure, process, and outcomes of international courts—for example, judicial independence, judgment compliance, and judicial legitimacy— contribute to their effectiveness.
Why this reading?
The article provides a rich and thorough analytical framework with its distinct focus on a goal-based approach to the study of the effectiveness of international courts (ICs) and its emphasis on the goals of the mandate holders. A goal-based approach is interested in the effectiveness of ICs, not their effects beyond what was intended by their creators. But as Shany acknowledges, unintended effects may also be of interest, including for a normative assessment of the activities of ICs. I also agree with the insufficiency of studying compliance, usage rates, or state conduct for the purpose of assessing effectiveness. Additionally, the distinctions between structure (input), process, and outcome (different from output), as used in political science, are important.
Questions for discussion
What should be considered the main functions of ICs?
- Shany identifies four ‘‘generic’’ goals:
- Promoting compliance with the governing international norms;
- Resolving international disputes and specific problems;
- Contributing to the operation of related institutional and normative regimes; and
- Legitimizing associated international norms and institutions.
But why not, place the traditional function of ICs—resolving international disputes—on top? What about adding as explicit categories the following two functions, which are also commonly accepted in the literature:
- Determining an authoritative interpretation of a legal norm beyond the relevant case (precedential or erga omnes effect)?; and
- Developing international legal norms through their interpretation (‘‘lawmaking’’)?
Shany is cautious about the usefulness of the goal-based approach in practice: ‘‘It remains to be seen whether the necessary tools for a meaningful qualitative and quantitative evaluation of effectiveness can be developed.’’ But how is it possible to determine the specialized goals of particular ICs, and what guidance may these goals provide in assessing IC effectiveness?
ICs should fulfill their functions in the sense that they actually produce their intended effects. But ICs serve several functions beyond dispute settlement.How to assess their effectiveness to the extent that ICs have a complex set of functions and often depend on deference by other actors for their effects. These other functions may also create tension between the judicial role of the ICs and their perceived wider role(s). How far ICs can go in accommodating such functions without losing their legitimacy in their core role of dispute settlement is questionable?