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An overflow crowd heard a stimulating series of presentations on the effectiveness of international courts. Yuval Shany introduced the discussion by outlining a “goal based approach” to effectiveness. Shany suggested that assessing a court’s effectiveness in terms of compliance or usage rates – as many scholars do – is insufficient. Tribunals pursue multiple explicit and implicit goals, and the task of scholars is to identify and assess those goals.
ICJ Judge Joan Donoghue suggested that the states that created the ICJ had four primary goals in mind: (i) to settle state-to-state disputes in accordance with the law; (ii) to contribute to the work of UN bodies through issuing Advisory Opinions; (iii) to develop international law by clarifying ambiguities; and (iv) to create a “shadow of adjudication” whereby the Court’s very existence would influence state behavior. Judge Donoghue strongly urged scholars to explore ways the Court could be more effective. She closed by noting that because the resources devoted to the settlement of international disputes are limited, it is critical that the system work as effectively and efficiently as possible.
Sivan Shlomo-Agon addressed the WTO’s dispute settlement system. She argued that goals in this context are not only multiple, but also dynamic – they shift over time, among different cases, and frequently are in tension with each other. By way of example, she claimed that in trade cases, goals such as maintaining systemic legitimacy come to the fore. In contrast, in some long-running disputes with high political and economic stakes – such as the Bananas and Hormones disputes – the goals shift to keeping the dispute within the bounds of the rule-based WTO system, and shaping the strategic environment within which the parties negotiate a solution. She echoed Shany’s call to think beyond compliance and usage rates.
Victor Peskin focused on international criminal tribunals. Peskin emphasized the temporal dimension of effectiveness, noting that the “operational effectiveness” of criminal tribunals had greatly improved over time. He also highlighted “the political dimension of effectiveness,” including efforts to persuade stakeholders that criminal tribunals are effective. Referencing the tensions between the ICC and AU, Peskin noted that prosecutorial claims of effectiveness are often made in the context of highly contentious political environments, often triggering counterclaims by states and others who accuse the courts of being ineffective or biased. Peskin predicted that the outcome of this high-visibility controversy will substantially impact public perceptions of ICC effectiveness.
Finally, Geir Ulfstein raised some questions about the goal-based approach. While agreeing that courts pursued multiple goals, he urged courts and scholars not to lose sight of the primary goal of dispute resolution. He also noted the difficulty of determining other goals – treaty terms were often vague, ambiguous, aspirational, incomplete, and sometimes contradictory. Given that goals could be unstated or ambiguous, he wondered how much guidance goal based approaches offer. He concluded that assessments of judicial effectiveness will turn largely upon how skillfully courts are able to balance pursuit of their multiple goals.
These insightful presentations quite effectively conveyed the complexity – and the necessity – of further research into the concept of tribunal effectiveness.
Jeffrey Dunoff is a professor of Law at Temple University Beasley School of Law. His research and writing focuses on public international law, international regulatory regimes, international organizations, and interdisciplinary approaches to international law.