Pluricourts: the Legitimate Roles of the Judiciary in the Global Order

PluriCourts: The Legitimate Roles of the Judiciary in the Global Order

Since the end of the Cold War, states have established a cascade of international courts and tribunals (ICTs). They range over the dispute settlement mechanism of the WTO, the International Criminal Court , the International Tribunal for the Law of the Sea, regional human rights courts such as the European Court of Human rights, and investment arbitration under the Centre for Settlement of Investment Disputes (ICSID). A fundamental aim in the early years of dispute settlement was to replace wars with peaceful dispute settlement. The new ICTs cover a multitude of areas and serve functions that go far beyond dispute settlement and protection of peaceful relations between states.

Some hail ICTs as institutional or constitutional constraints on an anarchic system of states, as islands of effective world governance whereby states have established institutions to address common objectives. Still too dependent and weak relative to states, multinational corporations and other non-state actors, ever new ICTs are called for to address challenges ranging from climate change to corporate wrongdoing (Jackson 1998).

To others this global judiciary suffers from several legitimacy deficits. Skeptics question whether ICTs achieve their intended effects, and charge that insofar as ICTs make law, they usurp and circumvent accountable legislatures. ICTs ‘judicialize’ and ‘hollow out’ the powers of sovereign states, with little in the way of accountability or checks and balances familiar from domestic constitutional arrangements. Indeed, the anarchy among states may simply be replaced by turf wars among the mushrooming ICTs.

The primary objective of PluriCourts is to determine the present and legitimate future roles of this emerging global judiciary in the international and domestic order. Assessment depends on the origins of the ICTs, their differing structure, and their effects. PluriCourts therefore asks why states decided to establish ICTs for some challenges - but not others; how they operate; and how well they promote the objectives of their founders, different as those expectations may be, e.g. for the WTO compared to human rights courts. PluriCourts draws on these findings to scrutinize the legitimacy of ICTs, assessing the concerns of the proponents as well as those of the critics. PluriCourts then explores and assesses models for the future development of ICTs and their relationships to the domestic legal order, including national judiciaries.

Multidisciplinary teams of legal scholars, political scientists and political theorist will study individual ICTs, their interaction with other ICTs, and with domestic courts, the national legislature and the executive powers, in five different sectors. PluriCourts will yield a wealth of international publications and a sustainable boost for teaching and research on these topics, central to globalisation and internationalisation, at several Norwegian institutions of higher education. In addition, PluriCourts will also offer well founded policy suggestions for improving ICTs: Where they should be supplemented and which future scenarios to promote.

State of the Art and Value Added

To address these questions PluriCourts stands on the shoulders of the best work done in international law, international relations and international political theory, and benefit from their combination. For instance, much research has been carried out about how some of the ICTs work. Two of the major contributions of PluriCourts is to undertake comparative research among the ICTs, and to connect these findings to broader, important explanatory and justificatory issues pertaining to the ICTs. PluriCourts asks new questions, about the legitimate role of each ICT and of their combination critically regarded as a global judiciary. Can they contribute to resolve international needs, while fulfilling relevant standards of legitimacy?

International legal theory has traditionally studied particular ICTs, their judgments, and effectiveness in resolving disputes in specialized issue areas, such as the European Court of Justice, regional human rights courts (especially the European Court of Human Rights), and the WTO Dispute Settlement Understanding (DSU). A recent concern is the fragmented international judicial system and possible problems related to conflicting jurisdiction and jurisprudence between international courts. The Project on International Courts and Tribunals (PICT) at the New York University School of Law and University College London (Sands, Shany), and the project International Law in Domestic Courts (ILDC) at the University of Amsterdam (Nollkaemper) resemble PluriCourts, but do not focus on the legitimacy of ICTs. More theoretical studies on the legitimacy of international law, such as Global Administrative Law at the New York University School of Law (Kingsbury, Krisch), and the ever-increasing literature on the constitutionalisation of international law, fail to focus on ICTs. The Max Planck Institute for Comparative Public Law and International Law (Heidelberg) is host of the project The Exercise of International Public Authority by International Institutions which studies the public authority exercised by international institutions, including international courts (von Bogdandy). PluriCourts combines these differents strands when studying the legitimacy of ICTs in a multi-level context.

The best international relations (IR) research has already integrated international legal and social science scholarship to explain the growth of ICTs. Rationalist IR theory has asked why states establish such constraints on themselves and why states comply even with weak ICTs. Research has hitherto tended to focus on a single ICT or one issue-area such as trade or human rights, or the European context (though with exceptions such as xx). PluriCourts combines these to tease out theoretical implications and general conclusions about origins, structure and consequences of particular ICTs, as well as the complex interactions of ICTs across issue areas and levels. Other relevant research concerns the feasibility and stability of institutions (Zurnxx), highly relevant for assessing ICT reform proposals, eg how ICTs may foster cooperation but also creates new opportunity spaces for political conflict.

In normative international political theory and political philosophy, several researchers have addressed institutions beyond the nation state, partly as a "cosmopolitan turn" in political philosophy. Some sketch sweeping cosmopolitan blueprints for global order reform, where courts are central (Held, Caney?). Other strands address single constitutional principles that should inform global legal reform processes: human rights. Buchanan 2004, or international protective and restorative action Beitz 2009. Yet other legal or philosophical theorists consider individual reform proposals: a World Court of Human Rights (Nowak, 2007; Scheinin, 2006; Ulfstein, 2008), or accepting the ECtHR as a European Constitutional Court (Ryssdal 1991 (update ref!), or a ‘cosmopolitan court of global corporate wrongdoing’ (Caney 2006, Jackson 1998). PluriCourts will draw on and combine such contributions, whilst avoiding the criticisms that normative theorists fail to appreciate how international courts work, and how they shape rather than end political contestation (Hessler 2005, Peters…. ).

Methodology

PluriCourts combines descriptive, explanatory and normative elements to gain traction on the comparative, multi-level and multi-disciplinary nature of the primary objective. Scholars in international law, international relations and political philosophy – and international political economy and the sociology of law where relevant - connect previously disjointed literatures. PluriCourts secures methodological standards within each discipline, by ensuring a critical mass of each of the three main disciplines that cooperates within five research themes in five issue areas. PluriCourts includes both qualitative and quantitative empirical research, large-n and case studies, and process tracing. The political theorists use standard methods of normative reasoning, especially ‘wide reflective’ or ‘pragmatic’ equilibrium (Daniels 2003; Follesdal 2009, Fung 2007). The legal scholars employ recognized methods in international law, applicable methods in the respective national jurisdictions, as well as comparative legal methods.

PluriCourts incorporates and expands on the ERC Advanced Grant project MultiRights, (www.multirights.net) (2011-2016) at the Law Faculty, University of Oslo, which studies the legitimacy of multi-level human rights conventions. It considers several reform proposals for global and European human rights organs in the form of four plausible models, ranging from Primacy of National Courts to a World Court of Human Rights. Four Contested Constitutional Principles of legitimacy, critically revised, are used to assess these models: Human Rights values, the Rule of Law, Subsidiarity, and Democracy. PluriCourts draws on these efforts and expands the focus by addressing ICTs in five different sectors and how they interact; and brings to bear further principles of legitimacy.

Research Plan [This section will be cut so that the total is 15 pages]

PluriCourts consists of five interrelated Research Topics (RTs) in five sectors pursued by international research teams that contribute to the primary research objective concerning the legitimate roles of the ICTs as part of an emerging global judiciary.

The five sectors are chosen because ICTs have very different origins, design and effects in different areas. The division between different sectors allows PluriCourts to respect the specificities of different ICTs while allowing for comparisons, and asking which bases of legitimacy are of particular relevance to the ICT, and whether there may be similarities between models for the future development of legitimate ICTs in each sector.

The starting hypothesis for the Research Topics is that central actors such as politicians, judges and NGOs assess ICTs according to several possible aspects of legitimacy: Consent and democratic and representative influence; the Rule of Law including independence of the judiciary, due process, transparency and finality; Subsidiarity; Compliance and Effectiveness; Global Justice and Respect for Human rights values.

5 Sectors

PluriCourts compares ICTs in five substantive sectors at various territorial levels and studies their interplay. They are selected to vary on salient aspects given our research objectives: a) number of levels – national, regional and/or global and how they interact; b) the subjects regulated: states, individuals, international organizations, and/or corporations; c) the legal authority of ICTs, from the ‘strong’ Int’l Criminal Court and ad hoc int’l criminal tribunals which sentence individuals, over the European Court of Human Rights and the WTO dispute settlement system which pass binding judgments and decisions, to ‘weak’ non-binding settlement of individual complaints under UN human rights treaty bodies and non-compliance procedures under environmental agreements. d) the roles of the ICTs in dispute resolution and in developing law, such as the int’l criminal tribunals accused of pronouncing as “customary” international criminal law formerly unheard of (Milanovic); e) their relationship to legislative and executive bodies at international, regional and national levels, including the use of ICTs as ‘enforcement’ mechanisms; and f) their claim to relative hierarchical supremacy, human rights often touted as central to the ‘constitutionalization’ of international law.

The International Court of Justice (ICJ), the principal judicial organ of the UN, is perceived by many as the most authoritative judicial organ. This is often linked to the general jurisdiction of the court, an element that truly distinguishes the court from its fellow colleagues, even though the disputes before the ICJ involve states only. Also many comparative studies in international law involve the ICJ. It is interesting for PluriCourts to study the ICJ for comparative purposes, but also its interaction with specialized ICTs, and how ICJ deals with new issue areas, such as international environmental law and human rights. The European Court of Justice (now the Court of the European Union, CJEU) is not in itself a focus of PluriCourts. The CJEU is, however, important both as a comparative example of an advanced international court interacting with other EU organs and with member states, and because it increasingly engages in issues beyond the European context, i.e. the multi-level aspect of PluriCourts.

International human rights

In international human rights various international courts and treaty bodies assume different social functions, especially by giving standing to individuals at the international level, and their judicial review functions in particular are on the rise. Regional human rights courts are prominent examples. PluriCourts here draws on the findings of the MultiRights project, which scrutinizes some of these issues. PluriCourts go, however, beyond MultiRights for instance by comaring the European regime with that of the Inter-American human rights regime. New optional protocols for various international human rights conventions have recently been adopted or are currently being negotiated. In agreeing new procedures, questions of legitimacy have become imperative. States have started to question the legitimacy of the overall set up of the individual complaint procedures. They have started questioning, for example, the professionality of the members of those treaty bodies, etc. PluriCourts also studies the efforts of overcoming the fragmented institutional structure of international human rights, such as the proposal of the High Commissioner of Human Rights to established a ‘unified treaty body’, the proposals of a World Court of Human Rights, and the efforts related to EU accession to the European Convention on Human Rights.

International trade law

Dispute settlement under WTO is of a traditional bilateral character. It is, however, not served by a traditional court but rather by a Dispute Settlement Understanding (DSU) with its panels and the Dispute Settlement Body. The members may apply countermeasures to enforce a binding settlement. Both the organisational, procedural and substantive aspects merit scrutiny, including involvement of third parties through formal intervention and use of amicus curiae, and the system’s interaction with other sectors, such as the environment and human rights. But also the relationship to the national level is of interest, i.e. decisons regarding prohibitions against use of subsidies and protection of patents in medicine.

International criminal law

In a sense this field is opposite international human rights law by subjecting individuals to international responsibility. It raises special concerns regarding selectiveness in geographical engagement, due process, inter-action with the UN Security Council and the relationship to national courts through the principle of complementarity. One issue of interest is the emergence of ‘Gender Crime’ in the 2008 Rome Statute recognizing rape as an individual crime and a crime against humanity and as a war crime, based on the ‘law making’ of the ICTY and ICTR. (ref)

International investment law

This area is of particular interest as non-state actors, i.e. multinational corporations are the main actors in this field, and enjoy procedural rights in international law. There is concern that this may severely curtail legitimate national needs for regulation i.a. concerning welfare, use of natural resources and environmental protection. The number of investment arbitrations has increased, especially under the auspices of The International Centre for Settlement of Investment Disputes (ICSID), yielding a plethora of allegedly inconsistent awards that is said to create a legitimacy crisis and calls for a standing appellate body (Frank 2005, Ratner 2005). The arbitration decisions are furthermore generally confidential and raise transparency concerns. This field raises particular research questions central to PluriCourts, but it is equally reason to ask whether international law should recognise international obligations by international corporations (CSR) and subject them to international control by ICTs. (ref Ruggie etc).