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International Judicial Lawmaking Has Its Limits

When Is Lawmaking Maximized and Effective in International Courts?

Why Might States Use International Tribunals?

Courts Versus Arbitration in Settling Disputes among States

Is There a Relationship between Effectiveness and the Independence of International Courts?

Legal scholar Tom Ginsburg argues that, whatever the official rhetoric may be, international courts are involved in lawmaking. Even though international courts are not bound by precedent, they nonetheless refer to previous decisions to “clarify” which facts are relevant and what legal principles apply.

States delegate lawmaking powers to international courts.

Judicial Lawmaking: Explicit and Implicit

Explicit Lawmaking

Judicial lawmaking is explicit when courts rely on previous decisions and rulings. Although international courts are not bound by precedents like domestic courts in common law countries, previous decisions are still important. International courts rely on previous rulings to “clarify” or supplement current decisions.

For example, officially, ICJ decisions are not precedent setting and only apply to the parties in the particular case. In reality, however, the ICJ cites earlier decisions in about 26% of cases. Although citing earlier cases is not the same thing as relying on precedent, it has much the same effect. The ICJ may point to an earlier decision, indicating that the judgment rendered in the earlier case was sound and applies in the current dispute.

So, even if precedent has no formal role in international judicial lawmaking, it still has a practical role.

Implicit Lawmaking

Implicit lawmaking occurs when courts make decisions about existing law. This occurs with both treaties and conventional international law.

Treaties

International courts interpret treaties. This form of lawmaking is the least controversial since decisions are binding only for the states party to the treaty. This is not to say that an interpretation of one treaty has no effect in the interpretation of a different treaty. It may. However, with the exception of the few treaties whose membership is nearly universal, interpretation of treaties does not officially create international law.

Customary Law

Customary law is often first identified by courts. Officially, the court is simply identifying law or custom already in practice rather than defining new law. However, this is not always the case. In defining customary law, judges may declare that common state practices have “crystallized” into an international rule or customary law.

States are not necessarily passive in the face of the development of customary law. They can avoid being bound by the law if they persistently object. However, unless a state objects, its silence is taken as support for the law.

Influence in Local Jurisdictions

There has been a growing tendency of domestic courts to look to the decisions of international courts when rendering decisions. Even though domestic courts are not bound by international judicial decisions, the legal reasoning of the international courts may exert a degree of influence.

Three Situations for International Judicial Lawmaking

Even if judicial lawmaking in the international arena is inevitable, when is it successful? In order to determine when judicial lawmaking is successful, we must first make a distinction between three situations where states delegate their lawmaking authority to international courts.

Explicit Delegation

States can explicitly delegate lawmaking authority to international courts. But, in order for states to agree to delegate lawmaking authority to a third party there needs to be some payoff. What do states have to gain by explicitly delegating lawmaking authority?

A number of considerations play into a state's decision to delegate its legislative authority. One important factor is that negotiating treaties and rules for international bodies can be very time and resource intensive. Giving a court or tribunal some limited degree of lawmaking authority ahead of time can save resources.

Delegating lawmaking authority is a potentially risky enterprise for a state. However, if certain limits are in place to check the actions of the courts, states face less risk.

For example, while states could have mandated detailed procedures for the International Criminal Tribunal for the Former Yugoslavia (ICTY), the statute establishing the ICTY gave the tribunal authority to determine its rules of evidence and procedure. This was no small delegation since these rules heavily affected the outcome.

Implicit Delegation

Treaties cannot encompass every possible event or situation. Situations arise that make treaties unclear. What does the treaty mean in the new situation? What facts are relevant to understanding the new situation? How can the states come to a common understanding of what is now going on, and how do they coordinate their actions to maintain an ongoing relationship?

When states seek the help of outside arbitrators or courts to help them come to a common understanding of a treaty, they implicitly delegate some of their lawmaking authority. As with explicit delegation of lawmaking authority, states incur some risk by relying on third parties to help them coordinate their actions and understandings.

States need not delegate this authority. They have a number of alternatives including diplomacy, coercion or even military action. However, these alternatives carry risks as well and may jeopardize the long-term relationship between states. From a state's perspective, it may be worth the risk of losing a particular dispute in a third party decision if they can maintain the long-term relationship and solve coordination problems down the line.

Ambiguity by Design

Ambiguity or vagueness in a treaty is not always accidental. In some cases, states have an interest in not crafting a crystal clear agreement. Why? There are several possible reasons:

1. There are certain events that are so unlikely that it may just not be worth the time and effort to spell them out explicitly,
2. States may believe that some points of law would be best clarified in concrete cases,
3. Vagueness may allow states to claim that the agreement means different things to different domestic audiences,
4. States may be uncertain of the circumstances and so not be willing to commit themselves to one particular course of action in the future.

In all these cases, a state may prefer to leave certain treaty provisions vague, knowing that they will have an outside party to help them coordinate their actions and understandings with other states should the need arise.

Enforcement?

One question that scholars often have is how an international court can be effective when there is no way for the court to enforce its decisions. That is, an international court cannot force a state to do anything. A state could delegate some lawmaking authority to a court only to ignore the court if the decision does not suit the state's interests. So why would a state follow a court's judgment if it went against the state's short term interest?

Understanding why a state would delegate some of its lawmaking authority to an international court provides some leverage for understanding why a state would follow an adverse court decision.

• Offloading some costs of negotiating treaties or settling disputes may be in a state's interests, especially regarding events that are unlikely to occur. Having to renegotiate a treaty whenever something unexpected happened would be very costly.
• States may prefer ambiguity in uncertain situations and prefer to rely on a court for help in clarifying the situation. The court's decision in a particular case may make future situations clearer and allow states to better define their interests.
• The long-term benefit of coordinating actions with a treaty partner (or partners) may outweigh the short-term costs of an adverse judgment,
• States may damage their reputations by ignoring court judgments,
• States may undermine the legitimacy of the court by ignoring the court's decisions. Even if a court's particular decision goes against a state's interest, the state may still benefit from the court's existence and legitimacy. For example, a state may believe that the work of the court brings a degree of control and order to an otherwise anarchic international situation. Supporting the court or tribunal may help create a more rational environment in which the state can pursue its interests.

In short, states delegate lawmaking authority (explicitly or implicitly) to international tribunals for reasons. It is these reasons (among others), and not the threat of enforcement, that likely leads to a state's complying with the judgments of tribunals.

Other States?

It is not just the parties to a court's decision that stand to gain. States that are not part of a treaty can also benefit from a court clarifying a particular situation.

If a court's decision provides a common understanding and clarity, and facilitates better coordination, it may be rational for third party states to abide by the decision. To use a simple analogy, if a court decided that two drivers should begin driving on the right side of the road, it would make sense for other drivers to do the same (unless they had strong interests in driving on the left side).

Additionally, a court decision may help other states understand which party was wrong in the first place. If a third party knows that a particular course of action is likely to result in an adverse decision, they may factor this into their future decisions.

Lawmaking without Delegation

Sometimes a court is asked to make a decision where the parties seeking to create the law will not be affected by the law. In this case there is no actual dispute. Ginsburg calls this “nonconsensual lawmaking” since it only partly involves states delegating lawmaking authority to the court.

• Advisory jurisdiction. In some cases, a court has advisory jurisdiction that allows other agencies or organizations to ask the court to clarify a point of law. Even when there is no dispute, a party may find it helpful to have a better understanding of the legal situation.
• Imposing constraints on others. In some cases an organization may ask a court for a decision that would affect states even though there is no dispute. For instance, in 1996, the World Health Organization brought a case before the ICJ to determine whether or not using nuclear weapons was a violation of international law. While there was no dispute against any particular country, a decision could potentially effect all nuclear powers. But, none of the nuclear powers had given consent to the court's jurisdiction in the matter. The ICJ refused to render a decision.

In cases like these, it is difficult to see why a state would comply with a decision where there was no delegation and where the decision was potentially harmful to state interests.

Other Keytexts from this source

International Judicial Lawmaking Has Its Limits

When Is Lawmaking Maximized and Effective in International Courts?