Assessing the Effectiveness of International Courts: A Goal-Based Approach

Yuval Shany

doi:10.5305/amerjintelaw.106.2.0225

¹ See Shany, Yuval, The Competing Jurisdictions of International Courts and Tribunals 3-7 (2003)Google Scholar; Martinez, Jenny S., Towards an International Judicial System, 56 Stan. L. Rev 429 (2003)Google Scholar; Romano, Cesare P. R., The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. Int’l L. & Pol. 709 (1999)Google Scholar.

² Romano defines an international judicial body as a one having five specific features: (1) permanence, (2) established by an international instrument, (3) use of international law to decide cases, (4) reliance upon preexisting rules of procedure in deciding cases, and (5) result of process is a binding decision. Romano, supra note 1, at 712; see also Alvarez, JoséE., International Organizations as Law-Makers 458 (2006)CrossRef Google Scholar; Shany, supra note 1, at 12 (noting that international tribunals are bodies that are manned by independent decision makers and created by international legislative processes, and that operate and decide cases according to law by issuing binding decisions); Tomuschat, Christian, International Courts and Tribunals, in Max Planck Encyclopedia of Public International Law (Wolfrum, Rüdiger ed., 2008), available at http://www.mpepil.com Google Scholar(“International courts and tribunals are permanent judicial bodies made up of independent judges which are entrusted with adjudicating international disputes on the basis of international law according to a pre-determined set of rules of procedure and rendering decisions which are binding on the parties.”); Voeten, Erik, The Politics of International Judicial Appointments, 9 Chi. J. Int’l L. 387, 389 (2009)Google Scholar (explaining that international courts are, by definition, formed by multiple governments).

³ For a discussion of the increased role of legal rules in international relations, see Alter, Karen, Private Litigants and the New International Courts, 39 Comp. Pol. Stud. 22 (2006)CrossRef Google Scholar; Hathaway, Oona A., Between Power and Principle: An Integrated Theory of International Law, 72 U. Chi. L. Rev. 469 (2005)Google Scholar; Goodman, Ryan & Jinks, Derek, How to Influence States: Socialization and International Human Rights Law, 54 Duke L. J. 621 (2004)Google Scholar; Koh, Harold H., Why Do Nations Obey International Law?, 106 Yale L. J. 2599, (1997)CrossRef Google Scholar (reviewing Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995) and Thomas M. Franck, Fairness in International Law and Institutions (1995)).

⁴ See generally Komesar, Neil, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy 5 (1994)Google Scholar (“It is institutional choice that connects goals with their legal or public policy results.”).

⁵ See, e.g., Alexander, James, The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact, 54 Vill. L. Rev. 1 (2009)Google Scholar; Baylis, Elena A., Reassessing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks, 50 B. C. L. Rev. 1 (2009)Google Scholar; Colares, Juscelino F., A Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development, 42 Vand. J. Transnat’L L. 383 (2009)Google Scholar; Helfer, Laurence, Alter, Karen & Guerzovich, Florencia, Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community, 103 AJIL 1 (2009)CrossRef Google Scholar; Guzman, Andrew T., International Tribunals: A Rational Choice Analysis, 157 U. Pa. L. Rev. 171 (2008)Google Scholar; McRae, Donald, Measuring the Effectiveness of the WTO Dispute Settlement System, 3 Asian J. WTO & Int’l Health L. & Poly 1 (2008)Google Scholar; Burstein, Mike, The Will to Enforce: An Examination of the Political Constraints upon a Regional Court of Human Rights, 24 Berkeley J. Int’l L. 423 (2006)Google Scholar; Granger, Leah, Explaining the Broad-Based Support for WTO Adjudication, 24 Berkeley J. Int’l L. 521 (2006)Google Scholar; Ku, Julian & Nzelibe, Jide, Do International Criminal Tribunab Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777 (2006)Google Scholar; Burke-White, William, Community of Courts: Toward a System of International Criminal Law Enforcement, 24 Mich. J. Int’l L. 1 (2002)Google Scholar; Helfer, Laurence & Slaughter, Anne-Marie, Toward a Theory of Effective Supranational Adjudication, 107 Yale L. J. 273 (1997)CrossRef Google Scholar.

⁶ Posner, Eric A. & Yoo, John C., Judicial Independence in International Tribunab, 93 Calif. L. Rev., 7 (2005)Google Scholar.

⁷ See id. at 73-74.

⁸ Helfer, Laurence & Slaughter, Anne-Marie, Why States Create International Tribunab: A Response to Professors Posner and Yoo, 93 Calif. L. Rev. 899, 906 (2005)Google Scholar. The other factors identified by Helfer and Slaughter are tribunals’ composition, caseload or functional capacity, independent fact-finding capability, formal authority, aware ness of audience, incrementalism, and quality of legal reasoning, plus the extent of judicial cross-fertilization and dialogue, the form of opinions, the nature of the violations, the existence of autonomous domestic institutions, and the relative cultural and political homogeneity of member states.

⁸ See id. at 918.

¹⁰ See, e.g., Ku & Nzelibe, supra note 5, at 780; Posner & Yoo, supra note 6, at 7.

¹¹ ‘ These methodological problems are further compounded by certain writers’ general assumptions about the role of international courts in the life of the international community; these assumptions seem to transpose the role that courts play in national legal systems onto the international realm. See, e.g., Cassese, Antonio, Is the ICC Still Having Teething Problems?, 4 J. Int’l Crim. Just. 434, 441 (2006)CrossRef Google Scholar; Helfer & Slaughter, supra note 5, at 290 (defining effectiveness of supranational courts as the ability to compel compliance, and essentially using domestic courts as a model for effectiveness); see also Guzman, supra note 5, at 178 (“Much of the existing debate on international courts . . . implicitly assumes that the role of these tribunals is essentially the same as that of domestic courts.”).

¹² See Shany, Yuval, Compliance with Decisions of International Courts as Indicative of Their Effectiveness: A Goal-Based Analysis, 2010 Proc. Eur. Soc’y Int’l L. 251 (2012)Google Scholar. For a comparable discussion of the relationship between compliance and effectiveness, see Jacobson, Harold K. & Weiss, Edith Brown, A Framework of Analysis, in Engaging Countries: Strengthening Compliance with International Environmental Accords l, 5 (Weiss, Edith Brown & Jacobson, Harold K. eds., 2000)Google Scholar (“Countries may be in compliance with a treaty, but the treaty may nevertheless be ineffective in attaining its objectives.”).

¹³ See, e.g., Guzman, supra note 5, at 187; Raustiala, Kal, Compliance & Effectiveness in International Regulatory Cooperation, 32 Case W. Res. J. Int’l L. 387, 394 (2000)Google Scholar.

¹⁴ See, e.g., Martin Shapiro, Courts: A Comparative and Political Analysis 16 (1986). Settled cases tend to have different attributes than unsettled cases. A focus on cases that proceeded a particular judgment may thus involve a selection bias. See, e.g., Woodward, James G., Settlement Week: Measuring the Promise, 11 N. Ill. U. L. Rev. 1, 32–33 (1990)Google Scholar (claiming that cases that courts failed to settle are less likely to be settled in subsequent mediation than cases that courts did not attempt to settle).

¹⁵ See Guzman, supra note 5, at 188.

¹⁶ See, e.g., Raustiala, Kal & Slaughter, Anne-Marie, International Law, International Relations and Compliance, in Handbook of International Relations 538, 539 (Carlsnaes, Walter, Risse, Thomas & Simmons, Beth eds., 2002)Google Scholar (focusing on influence on behavior as indicative of effectiveness); Raustiala, supra note 13, at 388; Young, Oran R., The Effectiveness of International Institutions: Hard Cases and Critical Variables, in Governance without Government: Order and Change in World Politics 160 (Rosenau, James N. & Czempiel, Ernst-Otto eds., 1992)CrossRef Google Scholar; see also Hafner-Burton, Emilie M., Victor, David G. & Lupu, Yonatan, Political Science Research on International Law: The State of the Field, 106 AJIL 47 (2012)CrossRef Google Scholar.

¹⁷ For an analogous discussion, see Young, supra note 16, at 163.

¹⁸ Guzman, supra note 5, at 188.

¹⁹ For a discussion of some of the limits of compliance data, see Downs, George, Rocke, David M. & Barsoom, Peter N., Is the Good News About Compliance Good News About Cooperation?, 50 Int’l Org. 379, 383 (1996)Google Scholar; Hafner-Burton et al., supra note 16; Raustiala & Slaughter, supra note 16, at 545; Shaffer, Gregory & Ginsburg, Tom, The Empirical Turn in International Legal Scholarship, 106 AJIL 1 (2012)CrossRef Google Scholar.

²⁰ See, e.g., Gabçikovo-Nagymaros Project (Hung. v. Slovk.), 1997 ICJ Rep. 7, paras. 140-41 (Sept. 25)Google Scholar:

[T]he Parties together should look afresh at the effects on the environment of the operation of the Gabçikovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river.

It is not for the Court to determine what shall be the final result of these negotiations to be conducted by the Parties. It is for the Parties themselves to find an agreed solution ....

²¹ See Jacobson & Weiss, supra note 12, at 5; Raustiala & Slaughter, supra note 16, at 549, 553.

²² See, e.g., Guzman, Andrew, How International Law Works: A Rational Choice Theory 54 (2010)Google Scholar (stating that one of the reasons for creating international tribunals is that they may establish or clarify the substantive rules of international law); Howse, Robert & Teitel, Ruti, Beyond Compliance: Rethinking Why International Law Really Matters, 1 Global Pol’y 127 (2010)CrossRef Google Scholar; see also Lauterpacht, Hersch, The Function of Law in the International Community 330-31 (1933)Google Scholar; Müllerson, Rein, Aspects of Legitimacy of Decisions of International Courts and Tribunals: Comments, in Legitimacy in International Law 189, 199 (Wolfrum, Rüdiger & Roben, Volker eds., 2008)CrossRef Google Scholar (discussing the law-changing function of international courts).

²³ For a general call to engage in interdisciplinary research when thinking about fundamental international law concepts, see Thomas M. Franck, The Power of Legitimacy among Nations 10—11 (1990).

²⁴ See Guzman, supra note 5, at 189.

²⁵ Indeed, under the supervision of the current author, junior colleagues are already engaged in a variety of such research projects.

²⁶ Scott, W. Richard, Organizations: Rational, Natural and Open Systems 350 (5th ed. 2002)Google Scholar (noting that “effectiveness is argued by some theorists to be a determinant as well as a consequence of organizational structure”).

²⁷ Herman, Robert D. & Renz, David O., Theses on Nonprofit Organizational Effectiveness, 28 Nonprofit & Voluntary Sector Q. 107, 109 (1999)CrossRef Google Scholar.

²⁸ Chester I. Barnard, The Function of the Executive 20 (1968); see also Amitai Etzioni, Modern Organizations 8 (1964); Jeffrey Pfeffer, Organizations and Organization Theory 41 (1982); Price, James L., The Study of Organizational Effectiveness, 13 SOC. Q. 3, 3–7 (1972)CrossRef Google Scholar.

²⁹ Raymond F. Zammuto, Assessing Organizational Effectiveness 12 (1982).

³⁰ Mark H. Moore, Creating Public Value: Strategic Management in Government 95-99 (1995); Sharon M. Oster, Strategic Management for Nonprofit Organizations: Theory and Cases 27-28 (1995).

³¹ Young offers the term equity as encapsulating a normative assessment of the collective behavior facilitated by social institutions. Young, supra note 16, at 164.

³² See Scott, supra note 26, at 351.

³³ See Boschken, Herman L., Organizational Performance and Multiple Constituencies, 54 Pub. Admin. Rev. 308, 311 (1994)CrossRef Google Scholar; Connolly, Terry, Conlon, Edward & Deutsch, Smart Jay, Organizational Effectiveness: A Multiple Constituency Approach, 5 Acad. Mgmt. Rev. 211, 213-14 (1980)Google Scholar.

³⁴ The normative aspects of the rational-system approach give it strong advantages as an organizing framework for social science research. Other, competing approaches—for example, the open-system approach (which evaluates organizational interactions with their environments, without juxtaposing organizational effects against a specific normative yardstick) and the system-resource approach (which regards survivability and resource attainment as the key parameters of success)—have weaker normative content and are thus less conducive to a law-related study. For more on the open-system approach, see W. Richard Scott & Gerald F. Davis, Organizations and Organizing: Rational, Natural, and Open Systems Perspectives 31 (2006). One application of the open-system approach can be found in Oran Young’s work focusing on international institutions and defining effectiveness as “a measure of the role of social institutions in shaping or molding behavior in international society.” Young, supra note 16, at 161. For more on the system-resource approach, see Yuchtman, Ephraim & Seashore, Stanley E., A System Resource Approach to Organizational Effectiveness, 32 Am. Soc. Rev. 891, 898 (1967)CrossRef Google Scholar. Note, however, that even under the rational-system approach, an organization’s longevity is of some import. It can suggest, for example, that core stakeholders have continued to perceive the court in question as a useful or successful one. See, e.g., David Mckevitt & Alan Lawton, Public Sector Management: Theory, Critique & Practice 226 (1994); Young, supra note 16, at 166-69 (describing the longevity of the Svelbard regime in the face of strong political upheavals as indicative of its robustness).

³⁵ Perrow, Charles, The Analysis of Goah in Complex Organizations, 26 Am. Soc. Rev. 854, 854-66 (1961)CrossRef Google Scholar.

³⁶ Melissa Forbes & Laurence E. Lynn Jr., Organizational Effectiveness and Government Performance: A New Look at the Empirical Literature 8 (Nov. 2006) (unpublished manuscript), at http://www.docstoc.com/docs/1013053/Organizational-Effectiveness-and-Government-Performance-A-New-Look-at-the-Empirical-Literature); see also Stewart Clegg & David Dunkerley, Organization, Class and Control 309 (1980); Perrow, supra note 35, at 55 (defining “[o]fficial goals” as “the general purposes of the organization as put forth in the charter, annual reports, public statements by key executives and other authoritative pronouncements”); Rainey, Hal G., Understanding and Managing Public Organizations 127 (2d ed. 1997)Google Scholar (“[0]fficial goals are formal expressions of general goals that present an organization’s major values and purposes”).

³⁷ Operative goals tend to “designate the ends sought through the actual operating policies of the organization; they tell us what the organization actually is trying to do, regardless of what the official goals say are the aims.” Per row, supra note 35, at 855; see also Rainey, supra note 36, at 127 (“ Operative goals are the relatively specific immediate ends an organization seeks, reflected in its actual operations and procedures.”).

³⁸ Council of Europe, Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, Explanatory Report, para. 37 (May 13, 2004), at http://conventions.coe.int/Treaty/en/Reports/Html/194.htm (indicating that “these elements of the reform seek to reduce the time spent by the Court on clearly inadmissible applications and repetitive applications so as to enable the Court to concentrate on those cases that raise important human rights issues”); Sixth Annual Report of the ICTY to the UN General Assembly, para. 116, UN Doc. A/54/187 (1999) (“[t]his amendment is part of the ongoing commitment of the Tribunal to speeding up the trial process while providing for the proper protection of the rights of the accused”).

³⁹ Office of the ICC Prosecutor, Report on Prosecutorial Strategy 7 (2006), at http://www.icc-cpi.int/NR/rdonlyres/D673DD8C-D427-4547-BC69-2D363E07274B/l43708/ProsecutorialStrategy200609l4_English.pdf (“The second objective is to conduct four to six new investigations of those who bear the greatest responsibility in its current or new situations.”).

⁴⁰ See, e.g., Report of the International Court of Justice to the UN General Assembly, para. 239, UN Doc. A/62/4, para. 239 (2007) (“President Higgins explained that the aim of the Court was ‘to increase further [its] throughput in the coming year.’”).

⁴¹ In this context Perrow and Robert Gross distinguish between output goals, which correspond to the expectations of external referents (for example, customers or investors), and support goals, which address the needs of internal referents that maintain the operation of the organization (for example, directors or employees). Charles Perrow, Organizational Analysis: A Sociological View 134 (1970); Gross, Edward, The Definition of Organizational Goals, 20 Brit. J. Soc. 277, 282 (1969)Google Scholar.

⁴² Stanley Seashore and Ephraim Yuchtman propose to divide goals into three hierarchical categories: ultimate criteria (which may be immeasurable), penultimate criteria, and subsidiary variables (states and processes). Seashore, Stanley E. & Yuchtman, Ephraim, Factorial Analysis of Organizational Performance, 12 Admin. Sci. Q. 377, 378-79 (1967)CrossRef Google Scholar.

⁴³ Franck, supra note 23, at 50-52.

⁴⁴ Friedlander, Frank & Pickle, Hal, Components of Effectiveness in Small Organizations, 13 Admin. Sci. Q. 289, 302-03 (1968)CrossRef Google Scholar.

⁴⁵ Chun, Young Han & Rainey, Hal G., Goal Ambiguity and Organizational Performance in U. S. Federal Agencies, 15 J. Pub. Admin. Res. & Theory 529 (2005)CrossRef Google Scholar.

⁴⁶ Id. at 535.

⁴⁷ Note that if an organization’s goals are inconsistent, certain goals will, over time (and almost by definition), be only partially achieved. Under such circumstances, it may be difficult, if not impossible, to assess the organization’s overall effectiveness. One may therefore have to settle in such cases for an assessment that is only partial or “piecemeal.” See Scott, supra note 26, at 370 (“We must agree to settle for modest and limited measures of specific aspects of organizational structures, processes, and outcomes.”).

⁴⁸ Some normative assessment of the skewing effect of measurable operative goals on goal prioritization may therefore be warranted. See id. at 354. Some writers have claimed that public organizations, unlike for-profit organizations, suffer from inherent ambiguity in their evaluative goals, that one consequently cannot measure their objective effects, and that one needs to rely, instead, on proxies of effectiveness, such as workloads. Thompson, John L., Strategic Management: Awareness And Change 175-76 (2d ed. 1997)Google Scholar; Kanter, Rosabeth M. & Summers, David V., Doing Well, While Doing Good: Dilemmas of Performance Measurement in Nonprofit Organizations and the Need for a Multiple-Constituency Approach, in The Non-Profit Sector: A Research Handbook 154, 156 (Powell, Walter W. & Steinberg, Richard eds., 1987)Google Scholar; Moore, Mark H., Managing for Value: Organizational Strategy in For-Profit, Nonprofit, and Governmental Organizations, 29 Nonprofit & Voluntary Sector Q. (SUPP. l) 183, 193 (2000)CrossRef Google Scholar.

⁴⁹ Chun, Young Han & Rainey, Hal G., Goal Ambiguity in U.S. Federal Agencies, 15 J. Pub. Admin. Res. & Theory 1, 12 (2005)Google Scholar.

⁵⁰ For a comparable discussion, see Wallander, Celeste A. & Keohane, Robert O., Risk, Threat and Security Institutions, in Imperfect Unions: Security Institutions Over Time And Space 21, 33 (Haftendorn, Helga, Keohane, Robert O. & Wallander, Celeste A. eds., 1999)Google Scholar (suggesting that changing conditions may result in the evolution of existing security institutions).

⁵¹ See Chun & Rainey, supra note 49, at 13.

⁵² See Scott, supra note 26, at 352; see abo Young, supra note 16, at 179 (discussing institutional robustness in light of changes over time).

⁵³ See Scott, supra note 26, at 365 (“Some organizations insist that their full effects may not be apparent for long periods following their performance.”).

⁵⁴ See, e.g., James G. March, A Primer on Decision Making: How Decisions Happen 31 (1994); Palmer, Donald A. & Biggart, Nicole Woolsey, Organizational Institutions, in The Blackwell Companion to Organizations 259, 265-66 (Baum, Joel A. C. ed., 2002)Google Scholar.

⁵⁵ But see Marshall W. Meyer & Lynne G. Zucker, Permanently Failing Organizations 133 (1989) (suggesting that long-lasting organizations may be permanent failures; their longevity is attributed to their ability to capture diverse constituencies with interests that are served by the organization’s continued existence).

⁵⁶ See, e.g., Ginsburg, Tom, International Judicial Law making, in International Conflict Resolution 155, 156 (Voigt, Stefan, Albert, Max & Schmidtchen, Dieter eds., 2006)Google Scholar; Guzman, supra note 5, at 179-80.

⁵⁷ A classic example for this phenomenon may be the European Court of Justice’s ongoing effort to construe European Community/European Economic Community law as supranationalistic even when the European-integration process was deadlocked. See, e.g., Renaud Dehousse, The European Court of Justice: The Politics of Judicial Integration 78-79 (1998); Garrett, Geoffrey & Weingast, Barry R., Ideas, Interests, and Institutions: Constructing the European Community’s Internal Market, in Ideas and Foreign Policy: Beliefs, Institutions, and Political Change 173, 196 (Goldstein, Judith & Keohane, Robert O. eds., 1993)Google Scholar.

⁵⁸ See Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Declaration [No. 17] Concerning Primacy, Dec. 13, 2007, 2007 O.J. (C 306) 231, 256 (“The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.”); see also Dehousse, supra note 57, at 142.

⁵⁹ Scott describes organizations meeting this description as “organized anarchies.” Scott, supra note 26, at 355.

⁶⁰ Cf. Krasner, Stephen D., Structural Causes and Regime Consequences: Regimes as Intervening Variables, 36 Int’l Org. 185, 186 (1982)CrossRef Google Scholar (defining regimes as “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations”).

⁶¹ Cummings, Larry L., Emergence of the Instrumental Organization, in New Perspectives on Organizational Effectiveness 56, 60 (Goodman, Paul S. & Pennings, Johannes M. eds., 1977)Google Scholar; Scott, supra note 26, at 354.

⁶² See Scott, supra note 26, at 353; see also Yuchtman & Seashore, supra note 34, at 896.

⁶³ See, e.g., Jacobson & Weiss, supra note 12, at 5 (noting that an antipollution treaty proscribing a particular pollutant may lead to use of more-polluting substitutes).

⁶⁴ See Barnard, supra note 28, at 19-20.

⁶⁵ Bart Prakken, Information, Organization and Information Systems Design: An Integrated Approach to Information Problems 45 (2000) (“Effectiveness makes clear whether that target is reached while ignoring the means that were used.”).

⁶⁶ See, e.g., Raab, Dominic, Evaluating the ICTY and tts Completion Strategy, 3 J. Int’l Crim. Just. 82, 84 (2005)CrossRef Google Scholar (“It was reasonable to question the value for money derived from a war-crimes tribunal, absorbing a large amount of UN resources disproportionate to its geographical focus.”); Wippman, David, The Costs of International Justice, 100 AJIL 861, 862 (2006)Google Scholar (noting that “cost concerns played a major role in the adoption of the ICTY’s ‘completion strategy,’ designed to bring the work of the Tribunal to a close by 2010”). Still, another explanation for adopting the completion strategy may have been that the two tribunals were perceived as having achieved much of their mission: they were effective. See, e.g., Raab, supra, at 84 (“ [P] rogress in the states of the former Yugoslavia suggested that the ICTY could conclude its activities claiming some credit as a motor for political reform in the region. Rightly or wrongly, this gave rise to increasing pressure for some degree of finality to the ICTY obligations of the states of the former Yugoslavia.”).

⁶⁷ Peter F. Drucker, Managing the Nonprofit Organization: Principles and Practices 198 (2006) (explaining that efficiency is doing things right, whereas effectiveness is doing the right things). But see Young, supra note 16, at 164 (describing inefficiency as pareto suboptimal performance).

⁶⁸ This level of analysis is sometimes referred to as macro-quality assessment. Reinhardt, Uwe E., Proposed Changes in the Organization of Health-Care Delivery: An Overview and Critique, 51 Milbank Mem’e Fund Q. 169 (1973)CrossRef Google Scholar PubMed.

⁶⁹ Efficiency and cost-effectiveness may also be important considerations in explaining changes in judicial mandates. If, over time, a certain judicial activity designed to attain one of the court’s goals generates significant negative externalities or proves to be too costly to justify the efforts to attain it, the mandate providers may renounce that goal or try to deprioritize it. If, however, the court’s practice suggests that some of its activities generate significant unforeseen benefits, external goal-setters may seek to incorporate such outcomes within the court’s goals or to prioritize the goal whose attainment is generating these side benefits.

⁷⁰ See, e.g., Tolbert, Pamelas & Hall, Richard, Organizations: Structures, Processes and out Comes 17 (10th ed. 2008)Google Scholar.

⁷¹ Ingraham, Patricia & Donahue, Amy, Dissecting the Black Box Revisited: Characterizing Government Management Capacity, in Governance and Performance: New Perspectives 292, 293-97 (Heinrich, Carolyn J. & Jr.Lynn, Laurence E. eds., 2000)Google Scholar.

⁷² Id. at 303.

⁷³ See Rainey, supra note 36, at 129; see also Tolbert & Hall, supra note 70, at 187.

⁷⁴ Forbes & Lynn, supra note 36, at 9.

⁷⁵ See Sowa, Jessica E., Seiden, Sally C. & Sandfort, Jodi R., No Longer Unmeasurable? A Multidimensional Integrated Model of Nonprofit Organizational Effectiveness, 33 Nonprofit & Voluntary Sector Q. 711, 715 (2004)CrossRef Google Scholar (“To improve outcomes, organizations need to understand how their structures and processes enable or hinder those outcomes.”).

⁷⁶ See, e.g., Peskin, Victor, Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Programme, 3 J. Int’l. Crim. Just. 950 (2005)CrossRef Google Scholar.

⁷⁷ See Moore, supra note 30, at 33-36.

⁷⁸ See Forbes & Lynn, supra note 36, at 11.

⁷⁹ Some research projects, conducted at both national and international levels, have developed standards and criteria for assessing the effectiveness of domestic courts. These initiatives include The International Frame Work For Court Excellence (2009), available at http://www.courtexcellence.com/pdf7IFCE-Framework-vl2.pdf (looking at seven areas of court performance: court management and leadership; court policies; human, material, and financial resources; court proceedings; client needs and satisfaction; affordable and accessible court services; and public trust and confidence); European Commission for the Efficiency of Justice, Scheme for Evaluating Judicial Systems 2010-2012 Cycle 3-46, Council of Europe Doc. CEPEJ (2010) 11 (2011), at https://wcd.coe.int/ViewDoc.jsp?id=1796345&Site=COE (looking at demographic and economic data; access to justice and courts; organization of the court system; fair trials; careers of judges and prosecutors; lawyers; alternative dispute resolution; enforcement of court decisions; notaries; and functioning of the justice system); The National Center for State Courts, Courtools, at http://www.ncsconline.org/D_Research/CourTools/index.html (measuring access and fairness; clearance rates; time to disposition; age of pending caseload; trial date certainty; reliability and integrity of case file; collection of monetary penalties; effective use of jurors; satisfaction of court employees; and cost per case); How to Assess Quality in the Courts?, at http://www.oikeus.fi/uploads/6tegx.pdf (focusing on judicial process; judicial decisions; treatment of parties and public; promptness of proceedings; competence and professional skills of judges; and organization and management of adjudication).

⁸⁰ James D. Thompson, Organizations Inaction: Social Science Bases of Administrative Theory 94 (1967).

⁸¹ Cf., e.g., Sowa et al., supra note 75, at 713.

⁸² See, e.g., Donaldson, Victoria, The Appellate Body: Institutional and Procedural Aspects, in The World Trade Organization: Legal, Economic and Political Analysis 1277, 1332-33 (Macrory, Patrick F. J., Appleton, Arthur E. & Plummer, Michael G. eds., 2005)CrossRef Google Scholar (discussing attempts by the WTO’s Dispute Settlement Body to convey to the WTO’s Appellate Body its dissatisfaction with the latter’s position on the admissibility of amicus briefs).

⁸³ Thus, Helfer and Slaughter are correct, in my view, in referring to international courts as not fully independent, but rather as operating within a context of “constrained independence.” Helfer & Slaughter, supra note 8, at 955.

⁸⁴ For a survey of the relevant literature on international courts as agents or trustees, see Hafner-Burton et al., supra note 16; see also Alter, Karen J., Delegation to International Courts and the Limits of Re-contracting Political Power, in Delegation and Agency in International Organizations 312 (Hawkins, Darren G., Lake, David A., Nielson, Daniel L. & Tierney, Michael J. eds., 2006)CrossRef Google Scholar.

⁸⁵ See, e.g., ReusSmit, Christian, The Politics of International Law, in The Politics of International Law 14, 35-36 (Reus-Smit, Christian ed., 2004)CrossRef Google Scholar (comparing the community consent-based legitimacy of domestic and international law).

⁸⁶ See, e.g., Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 ( 1992), UN Doc. S/25704 (May 3,1993) (explaining the rationale for creating the ICTY and for its main features); Explanatory Report, supra note 38.

⁸⁷ See, e.g., Allen Buchanan & Robert O. Keohane, The Legitimacy of Global Governance Institutions, in Legitimacy in International Law, supra note 22, at 25, 54 (discussing the legitimacy conferring effect of public justifications).

⁸⁸ For example, judicially set goals may be less than uniform since individual judges may have idiosyncratic conceptions of the court’s goals—ones not shared by the bench as a whole. For a discussion of an analogous problem see Tullio Treves, Aspects of Legitimacy of Decisions of International Courts and Tribunak, in Legitimacy in International Law, supra note 22, at 169, 175, 186-87 (discussing the possibility that judges may differ a to what would constitute legitimacy-enhancing strategies).

⁸⁹ For example, one justification for creating international criminal courts has been the need to satisfy crime victims’ desire for the sense of closure that would be achieved through telling their stories and punishing the guilty See, e.g., Damaska, Mirjan, What is the Point of International Criminal Justice?, 83 Chi.-Kent L. Rev. 329, 333-34 (2008)Google Scholar.

⁹⁰ See, e.g., Carla Del Ponte & Chuck Sudetic, Madame Prosecutor: Confrontations Witi Humanity’s Worst Criminals And The Culture Of Impunity 93 (2009) (discussing how the ICTR’s ability to perform its task might be affected by the Rwandan goernment’s refusal to cooperate with the ICTR in the aftermath of the Barayagwiza fiasco).

⁹¹ See, e.g., Canor, Iris, The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values: Three Replies to Pasquah de Sena and Maria Chiara Vitucci, 20 Eur. J. Int’l L. 870, 880 (2009)Google Scholar (suggesting that international courts legitimize international rules and the rule of law); Treves, supra note 88, at 175 (describing legitimization as inherent in judicial function).

⁹² See, for example, the Dispute Settlement Body’s acceptance of the Appellate Body’s allegedly self-identified goal of harmonizing trade law with general international law. McRae, Donald, Treaty Interpretation and the Development of International Trade Law by the WTO Appellate Body, in The WTO at Ten: The Contribution of the Dispute Settlement System 360, 369-71 (Sacerdoti, Giorgio, Yanovich, Alan & Bohanes, Jan eds., 2006)Google Scholar.

⁹³ See Damaska, supra note 89, at 341.

⁹⁴ Cf. Belilos v. Switzerland, 132 Eur. Ct. H.R. (ser. A), para. 64 (1988).

⁹⁵ Hafner-Burton et al., supra note 16 (alluding to path dependence in institutional design).

⁹⁶ Yankov, Alexander, The International Tribunal of the Law of the Sea and the Comprehensive Dispute Settlement System of the Law of the Sea, in The International Tribunal For the Law of the Sea: Law and Practice 33, 37 (Rao, P. Chandrasekhara & Khan, Rahmatullah eds., 2001)Google Scholar.

⁹⁷ See, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 46, ETS No. 5,213 UNTS 222 [hereinafter European Convention] (introducing an optional jurisdiction clause); id., Art. 43 (introducing the ad hoc judge system).

⁹⁸ See, E.G., Scott Davidson, The Inter-American Human Rights System 31 (1997); Nmehielle, Vincent O. Orlu, The African Human Rights System: Its Laws, Practice, and Institutions 58, 259 (2001)Google Scholar.

⁹⁹ See, e.g., Katrin Nyman Metcalf & Ioannis Papageorgiou, Regional Integration and Courts of Justice 20 (2005); Baudenbacher, Carl, Judicialization: Can the European Model Be Exported to Other Parts of the World?, 39 Tex. Int’l L. J. 381, 397 (2004)Google Scholar.

¹⁰⁰ See, e.g., Noone, Gregory P. & Moore, Douglas William, An Introduction to the International Criminal Court, 46 Naval L. Rev. 112, 116 (1999)Google Scholar; Tiefenbrun, Susan W., The Paradox of International Adjudication: Developments in the International Criminal Tribunal for the Former Yugoslavia and Rwanda, the World Court, and the International Criminal Court, 25 N. C. J. Int’l L. & Com. Reg. 551, 592 (2000)Google Scholar.

¹⁰¹ See, e.g., Chiam, Madelaine, Different Models of Tribunals, in The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? 205, 206 (Blumenthal, David A. & McCormack, Timothy L. H. eds., 2008)Google Scholar; Galbraith, Jean, The Pace of International Criminal Justice, 31 Mich. J. Int’l L. 79, 80 (2009)Google Scholar.

¹⁰² See, for example, Georges Abi-Saab’s law of legal physics: “To each level of normative density, there corresponds a level of institutional density necessary to sustain the norms[.]” GeorgeAbi-Saab, , Fragmentation or Unification: Some Concluding Remarks, 31 N. Y. U. J. Int’l L. & Pol. 919, 925 (1999)Google Scholar.

¹⁰³ For an explicit allusion to the goals of promoting norm compliances, see, for example, European Convention, supra note 97, Art. 19 (“To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights . . . .”);Rome Statute of the International Criminal Court, pmbl., July 17, 1998, 2187 UNTS 90 [hereinafter Rome Statute] (“Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,. . . Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court, .... Resolved to guarantee lasting respect for and the enforcement of international justice . . . .”); Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 3.2, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 UNTS 401, 33 ILM 1226, 1227(1994) [hereinafter DSU] (“The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law.”); Treaty of the South African Development Community, Art. 16(1), Aug. 17, 1992 (“The Tribunal shall be constituted to ensure adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it.”), at http://www.sadc.int/index/browse/page/120; William J. Davey, The WTO Dispute Settlement Mechanism (III. Public Law and Legal Theory Research Paper No. 03-08, 2003), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=4199432 (stating that “[c]learly the goal of the dispute settlement system should be to promote compliance with WTO rules”).

¹⁰⁴ Guzman, supra note 22, at 51.

¹⁰⁵ Franck, supra note 23, at 61- 62. Guzman regards “information dissemination” as the core function of international tribunals. Guzman, supra note 5, at 179-80; see also Guzman, supra note 22, at 134.

¹⁰⁶ See, e.g., UN Chatter, pmbl. (“We the Peoples of the United Nations determined... to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained . . . .”); League of Nations Covenant, pmbl. (“The High Contracting Parties, In order to promote international co-operation and to achieve international peace and security ... by the firm establishment of the understandings of international law as the actual rule of conduct among Governments . . . .”).

¹⁰⁷ High Level Conference on the Future of the European Court of Human Rights, Interlaken Declaration, Feb. 19, 2010, Action Plan, sec. Al (“The Conference reaffirms the fundamental importance of the right of individual petition as a cornerstone of the Convention system which guarantees that alleged violations that have not been effectively dealt with by national authorities can be brought before the Court.”); Rome Statute, supra note 103, pmbl. (“Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished . . ., Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes . . . . Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole . . . .”); DSU, supra note 103, Art. 3.1 (“The prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member is essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members.”).

¹⁰⁸ See, e.g., James Brown Scott, The Project of A Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists: Report and Commentary 49 (1920) (“The field of peaceful settlement is to be enlarged, or rather a new agency is to be created in this field, to the end that disputes which parties may wish to have settled by due process of law, that is to say, by the application of the principles of justice which we call rules of law, may be submitted to a court of justice, instead of a special or temporary tribunal of arbitration, to have them settled ‘on the basis of respect for law.’”).

¹⁰⁹ See, e.g., African Union, Protocol on the Statute of the African Court of Justice and Human Rights, pmbl., July 1, 2008, at http://www.africa-union.org/root/au/Documents/Treaties/treaties.htm (“The Member States of the African Union, Parties to this Protocol, . . . Firmly Convinced ùizt the establishment of an African Court of Justice and Human Rights shall assist in the achievement of the goals pursued by the African Union ....”); Agreement Establishing the Caribbean Court of Justice, pmbl., Feb. 14, 2001, at http://www.caricom.org/jsp/secretariat/legal_instruments/agreement_ccj.pdf (“The Contracting Parties,. . . Aware that the establishment of the Court is a further step in the deepening of the regional integration process . . . .”); DSU, supra note 103, Art. 3.2 (“The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system.”); see also Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, ITLOS Case No. 17, para. 30 (Feb. 1, 2011 ) (“The [Seabed Disputes Chamber] is mindful of the fact that by answering the questions it will assist the Council in the performance of its activities and contribute to the implementation of the Convention’s regime.”).

¹¹⁰ See, e.g., Rome Statute, supra note 103, pmbl. (“The States Parties to this Statute, . . . Resolved to guarantee lasting respect for and the enforcement of international justice . . . .”); International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group on the Fragmentation of International Law, Finalized by Martti Koskenniemi, at 206 - 11, UN Doc. A/CN.4/L.682 (2006) (discussing the principle of “systemic integration” and the expectations that international courts shall resort thereto).

¹¹¹ See, e.g., Franck, supra note 23, at 61-62; Buchanan, Allen & Keohane, Robert O., The Legitimacy of Global Governance Institutions, 20 Ethics & Int’l Aff. 405, 407 (2006)Google Scholar.

¹¹² See, e.g., Lauterpacht, supra note 22, at 425-26; Dupuy, Pierre-Marie, The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice, 31 N.Y.U. J. Int’l L. & Pol. 791, 791 (1999)Google Scholar; Peters, Anne, Global Constitutionalism Revisited, 11 Int’l Legal Theory 39, 65 (2005)Google Scholar.

¹¹³ On the relationship between goal choice and institution choice, see Komesar, supra note 4, at 49.

¹¹⁴ See, e.g., Paulus, Andreas, International Adjudication, in The Philosophy of International Law 207, 216 (Besson, Samantha & Tasioulas, John eds., 2010)Google Scholar (reviewed in this issue of the Journal).

¹¹⁵ Agreement on the European Economic Area, Art. 6, May 2, 1992, 1992 O.J. (L 1) 3; Agreement Between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, Art. 3, Jan. 31, 1994, 1994 O.J. (L 344) 1.

¹¹⁶ See DSU, supra note 103, Art. 23 (requiring member states to resolve all disputes through the DSU, rather than on their own); 2 The GATT Uruguay Round: A Negotiating History (1986-1992), at 2777-79, 2810 (Terence P. Stewart ed., 1993) [hereinafter GATT Uruguay Round]; Van Den Bossche, Peter, The Law And Policy of the World Trade Organization 171-72 (2d ed. 2008)CrossRef Google Scholar; Lida, Keisuke, Is WTO Dispute Settlement Effective?, 10 Global Governance 207, 215 (2004)Google Scholar (“Another purpose for which the WTO dispute settlement system was constructed was to fend off unilateralism.”); McRae, supra note 5, at 4-5 (WTO dispute settlement “was to provide an obligatory mechanism that would channel the behavior of states that wished to complain about non-compliance by others. That was how Section 301 was to be controlled. The United States was not going to be able to make unilateral determinations of WTO violations as it had done in the past in relation to GATT. It would have to go through WTO dispute settlement. This was accomplished by the prohibition in DSU Article 23 against unilateral action by WTO Members.”).

¹¹⁷ The Security Council’s resolution establishing the ICTY stated that the Security Council was “[c]onvinced that in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would . . . contribute to the restoration and maintenance of peace.” SC Res. 827, pmbl. (May 25,1993). Similarly, with regard to establishing the ICTR, the Security Council declared that it was “[cļonvinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law would . . . contribute to the process of national reconciliation and to the restoration and maintenance of peace.” SC Res. 955, pmbl. (Nov. 8, 1994). see also Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, pmbl. (2003), at http://www.eccc.gov.kh/english/cabinet/agreement/5/Agreement_between_UN_and_RGC.pdf (“Whereas ... the General Assembly recognized the legitimate concern of the Government and the people of Cambodia in the pursuit of justice and national reconciliation, stability, peace and security . . . .”).

In the third paragraph of Rome Statute’s preamble, the state parties “ [r]ecogniz[e] that such grave crimes threaten the peace, security and well-being of the world.” Rome Statute, supra note 103, pmbl. The Security Council’s Chapter VII referrals are one of the bases for the ICC to exercise its jurisdiction, and the inclusion of the crime of aggression under the ICC’s jurisdiction may also reflect that one of the ICC’s goals is to promote peace and security. See id., Art. 13 (b). Note, however, that Article 16 of the Rome Statute assumes that there may be circumstances in which the criminal proceedings may be undesirable from the international peace and security perspective. Id., Art. 16 (“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter . . . has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”). For a discussion of the tension between criminal justice and achieving peace and reconciliation, see Keller, Linda M., Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 (2008)Google Scholar; Ohlin, Jens David, Peace, Security, and Prosecutorial Discretion, in The Emerging Practice of the International Criminal Court 185 (Stahn, Carsten & Sluiter, Göran eds., 2009)Google Scholar; Zolo, Danilo, Peace Through Criminal Law?, 2 J. Int’l Crim. Just. 727 (2004)CrossRef Google Scholar.

¹¹⁸ For example, when exercising its advisory competence, the ICJ prioritizes its role in supporting norms and the international legal regime over its dispute settlement functions (which are more prominent when the Court exercises contentious jurisdiction).

¹¹⁹ See Guzman, supra note 5, at 177 (“Highly contextualized analysis can generate a more accurate portrait of a single institution but makes it difficult to extract lessons applicable across a range of dispute settlement strategies.”); Young, supra note 16, at 163 (indicating that “the effectiveness of institutional arrangements differs from one issue-area to another, . . . one spatial setting to another, or one time period to another”).

¹²⁰ Even when quantitative methods are selected, a supplementary, qualitative analysis may be needed in order to provide a meaningful context for any quantitative findings. See, e.g., Alec Stone Sweet & Thomas L. Brunell, How the European Union’s Legal System Works—and Does Not Work: Response to Carruba, Gabel, and Hankla 18 (October 2010) (unpublished manuscript), di http://www.works.bepress.com/alec_stone_sweet/36) (noting the need to supplement quantitative work with “thicker, descriptive analyses”).

¹²¹ Bouckaert, Geert & van Dooren, Wouter, Performance Measurement and Management in Public Sector Organizations, in Public Management and Governance 130 (Bovaird, Tony & Löffler, Elke eds., 2d ed. 2009)Google Scholar (“Outcomes are events, occurrences, or changes in conditions, behaviour or attitudes. Outcomes are not what the programme or organization itself did, but the consequences of what the programme or organization did.”).

¹²² For a discussion of process tracing, see George, Alexander L. & Bennett, Andrew, Case Studies and Theory Development in the Social Sciences 205 (2005)Google Scholar. For examples of recent empirical studies claiming to identify effects of international courts on national legal systems, see Slgall Horovitz, Sierra Leone: Interaction between International and National Responses to the Mass Atrocities 58 (2009), available at http://www.domac.is/media/domac/DOMAC3-SH-corr..pdf (claiming that the witness protection program in Sierra Leone has been facilitated by the Special Court for Sierra Leone); Slgall Horovitz, Rwanda: International and National Responses to the Mass Atrocities and Their Interaction 66 (2010), available at http://www.domac.is/media/veldu-flokk/DOMAC6-Rwanda.pdf (attributing, among other things, the revocation of the death penalty in Rwanda to the ICTR’s influence); Silvia Borelli, The Impact of the European Convention of Human Rights in the Context of War Crimes Trials in Bosnia and Herzegovina 23 (2009), available at http://www.domac.is/media/domac/DOMAC5-Impact-of-the-ECHR-on-war-crimes-prosecutions-in-Bosnia.pdf (claiming that Bosnia and Herzegovina introduced legal reforms in response to decisions of the European Court of Human Rights).

¹²³ See Scott, supra note 26, at 364 (“The problem of inadequate knowledge of cause-effect relations can be handled by the use of relative rather than absolute performance standards....”).

¹²⁴ Like intermediate goals, intermediate outcomes represent changes in the state of the world that may facilitate other, more profound changes. Hatry, Harry P., Performance Measurement: Getting Results 18 (2d ed. 2006)Google Scholar.

¹²⁵ See, e.g., Scott, supra note 26, at 350 (“The topic of organizational effectiveness is eschewed by some analysts on the ground that it necessarily deals with values and preferences that cannot be determined objectively. Such criticisms, however, apply not to the general topic, but only to certain formulations of it.”).

¹²⁶ See, e.g., Shany, supra note 1, at 8-ll; Pauwelyn, Joost & Salles, Luiz Eduardo, Forum Shopping Before Inter national Tribunals: (Real) Concerns, (Im)possible Solutions, 42 Cornell Int’l L. J. 77, 79-85 (2009)Google Scholar; Cogan, Jacob Katz, Competition and Control in International Adjudication, 48 Va. J. Int’l L. 411, 440-45 (2007)Google Scholar; Lowe, Vaughan, Overlapping Jurisdiction in International Tribunal, 1999 Austrl. Y. B. Int’l L. 191, 192-93Google Scholar; Kingsbury, Benedict, Is Proliferation of International Courts and Tribunal• a Systemic Problemi, 31 N. Y. U. J. Int’l L. & Pol. 679, 683-84 (1999)Google Scholar.

¹²⁷ See, e.g., IVTrumbull, Charles P., Giving Amnesties a Second Chance, 25 Berkeley J. Int’l L. 283, 312-23 (2007)Google Scholar; Hannum, Hurst, Peace Versus Justice: Creating Rights as Well as Order out of Chaos, 13 Int’l Peacekeeping 582, 583 (2006)Google Scholar; Snyder, Jack & Vinjamuri, Leslie, Trials and Errors: Principle and Pragmatism in Strategies of ‘International Justice, 28 Int’l Security, Winter 2003-04, at 5–6 CrossRef Google Scholar.

¹²⁸ See, e.g., Alexander, supra note 5, at 36-42; Kastner, Philipp, The ICC’ in Darfur—Savior or Spoiler? , 14 ILSA J. Int’l & Comp. L. 145, 152 (2007)Google Scholar; see generally, Rockoff, Hugh, History and Economics, in Engaging The Past: The Uses of Historyacross the Social Sciences 67 (Monkkonen, Eric H. ed., 1994)Google Scholar (“If outcomes are path dependent, and the choice among alternative paths [is] sometimes made on the basis of limited short-run concerns, the final outcome may not be the most efficient. The road not taken may be the right one.”).

¹²⁹ See Hafner-Burton et al., supra note 16 (discussing the problem of counterfactuals in effectiveness analysis).

¹³⁰ See, e.g., Tolbert, David, International Criminal Law: Past and Future, 30 U. Pa. J. Int’l L. 1281, 1287, 1293-94 (2009)Google Scholar; Office Of The UN High Commissioner for Human Rights, Maximizing the Legacy of Hybrid Courts 4 (2008); Burke-White, William, The Domestic Influence of International Criminal Tribunals: The Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina, 46 Colum. J. Transnat’L L. 279, 345-48 (2008)Google Scholar.

¹³¹ See, e.g., Clark, Janine N., The Limits of Retributive Justice, 7 J. Int’l Grim. Just. 463, 473 (2009)CrossRef Google Scholar; Judge Dennis Byron’s Address to the UN General Assembly, ICTR Newsletter, Oct. 2008, at 1, available at ictr-archive09.library.cornell.edu/ENGLISH/newsIetter/oct08/oct08.pdf (“Among the most basic and most important of the Tribunal’s achievements has been the accumulation of an indisputable historical record, including testimony of witnesses, testimony of victims, testimony of accused, documentary evidence, video recordings and audio recordings.”); Wilson, Richard, Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia, 27 Hum. Rts. Q. 908, 909 (2005)CrossRef Google Scholar; Cassese, Antonio, On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, 9 Eur. J. Int’l L. 2, 9-10 (1998)CrossRef Google Scholar.

¹³² See, e.g., Baylis, supra note 5, at 3-6; Hirsch, Moshe, The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System, 19 Eur. J. Int’l L. 277, 291 (2008)Google Scholar.

¹³³ See, e.g., Tolbert, supra note 130, at 1282; Schneider, Andrea K., The Intersection of Dispute Systems Design and Transitional Justice, 14, Harv. Negot. L. Rev. 289, 289 (2009)Google Scholar; Sadat, Leila, The Establishment of the International Criminal Court: From the Hague to Rome and Back Again, 8 J. Int’l. L. & Prac. 97, 112 (1999)Google Scholar.

¹³⁴ See, e.g., Yavitz, Laura, The WTO and the Environment: The Shrimp Case That Created a New World Order, 16 J. Nat. Resources & Envtl. L. 203, 205 (2001-02)Google Scholar.

¹³⁵ See, e.g., Tiba, Firew Kebede, What Caused the Multiplicity of International Courts and Tribunals?, 10 Gonz. J. Int’l L. 202, 203 (2006-07)Google Scholar.

¹³⁶ See Guzman, supra note 5, at 203 (“[t]ribunal design can influence outcomes”).

¹³⁷ See Scott, supra note 26, at 367.

¹³⁸ See Komesar, supra note 4, at 123 (discussing the special attributes of legal structures than may offer courts a comparative advantage over other social institutions for certain purposes).

¹³⁹ See Young, supra note 16, at 176 (noting the critical importance of transparency—that is, the monitoring of compliance with governing rules—in assessing the effect of social institutions on the individual and collective behavior of states).

¹⁴⁰ Cf. Raustiala & Slaughter, supra note 16, at 546 (discussing the relationship between the solution structure and norm qualities, on the one hand, and compliance, on the other).

¹⁴¹ Guzman emphasizes the perceived quality of the judges. Guzman, supra note 5, at 206. While perceptions of quality may be especially important in inducing compliance, my approach to effectiveness is broader and justifies considering other objective indicia of judicial quality.

¹⁴² One may note this overlap between the rational-system and system-resource approaches: a court’s survival and its empowerment (even self-aggrandizement), which are the measures of effectiveness under the latter approach, may improve its prospects for goal attainment, which is the measure of effectiveness under the former approach. Put differently, increasing the material capabilities available to international courts may be an intermediate goal that courts set for themselves in order to attain the ultimate ends for which they were created. Cf Huls, Nick, Introduction: From Legitimacy to Leadership, in The Legitimacy of the Highest Courts Rulings 3, 13 (Huls, Nick, Adams, Maurice & Bomhoff, Jacco eds., 2009)Google Scholar (“Every legal system tries in its own way to create legitimacy for its courts.”).

¹⁴³ Cf. Raustiala & Slaughter, supra note 16, at 545 (discussing the relationship between problem structure and compliance).

¹⁴⁴ The actual use of a court by the parties to litigation, which is one of the proxies for effectiveness identified in some of the literature, see, e.g., Posner & Yoo, supra note 6, at 28, could be indicative of the court’s perceived effectiveness.

¹⁴⁵ Cf. Raustiala & Slaughter, supra note 16, at 547 (discussing the relationship between domestic linkages and compliance).

¹⁴⁶ See Young, supra note 16, at 179 (emphasizing the importance of transformation rules for institutional effectiveness).

¹⁴⁷ For a discussion of institutional change as an effectiveness criterion, see Palmer & Biggart, supra note 54, at 266-72.

¹⁴⁸ Young refers to these factors as exogenous ones that govern effectiveness (as opposed to endogenem, structural factors). Young, supra note 16, at 176; see also Jacobson & Weiss, supra note 12, at 7.

¹⁴⁹ See Helfer & Slaughter, supra note 5, at 298, 367; Raustiala & Slaughter, supra note 16, at 547-48; see also Young, supra note 16, at 183-90 (discussing how, in an international regime, the effectiveness of institutions is influenced by state parties’ capacities to govern, the distribution of power among them, and their interdependence); Harold K. Jacobson & Edith Brown Weiss, Assessing the Record and Designing Strategies to Engage Countries, in Engaging Countries, supra note 12, at 511, 528-35 (discussing the centrality of the current international setting and country-related factors in assessing the effectiveness of international environmental regimes). Note, however, that Andrew Moravcsik claims that liberal states may be less inclined to embrace strong human rights institutions than some of their less-liberal counterparts. Moravcsik, Andrew, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Int’l Org. 217, 219-20 (2000)CrossRef Google Scholar.

¹⁵⁰ Cf. Raustiala & Slaughter, supra note 16, at 545 (discussing the relationship between the solution process and compliance).

¹⁵¹ Note that legitimacy may, ultimately, be a subjective notion. See Mitchel Lasser, Transforming Deliberations, in The Legitimacy of the Highest Courts Rulings, supra note 142, at 33,37. But see Ian Clark, Legitimacy in International Society 20 (2007) (defining legitimacy as the “political space marked out by the boundaries of legality, morality, and constitutionality”).

¹⁵² See Scott, supra note 26, at 366 (noting that process measures “assess conformity to a given program but not the adequacy or correctness of the programs themselves”); Ivan Illich, Deschooling Society 9 (1972) (Students are schooled “to confuse process and substance. Once they become blurred, a new logic is assumed: the more treatment there is, the better are the results.”). But see Scott, supra note 26, at 367 (recognizing that in organizations “confronting strong institutional pressures, ... to a large degree process is substance”).

¹⁵³ Martin A. Gramatikov, J. Maurits Barendrecht & Jin Ho Verdonschot, Measuring the Costs and Quality of Paths to Justice: Contours of a Methodolog)/ 11 (TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 004/2008), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1269328; Laura Klaming & Ivo Giesen, Access to Justice: The Quality of the Procedure 17 (TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 002/2008), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1269329.

¹⁵⁴ Klaming & Giesen, supra note 153, at 11.

¹⁵⁵ Id. Employee involvement may also be an important component in the process. Vandenberg, Robert J., Richardson, Hettie A. & Eastman, L. J., The Impact of High Involvement Work Processes on Organizational Effectiveness: A Second-Order Latent Variable Approach, 24 Group Org. Mgmt. 300 (1999)CrossRef Google Scholar.

¹⁵⁶ Gramatikov et al., supra note 153, at 11.

¹⁵⁷ Rome Statute, supra note 103, pmbl.

¹⁵⁸ DSU, supra note 103, Art. 3.3 (stating that dispute settlement is essential to the “maintenance of a proper balance between the rights and obligations of Members”); Van Den Bossche, supra note 116, at 93; Thomas A. Zimmermann, Negotiating the Review of the WTO Dispute Settlement Understanding 21 (2006), available at http://mpra.ub.uni-muenchen.de/4498/l/MPRA_paper_4498.pdf; 2 The GATT Uruguay Round, supra note 116, at 2669.

¹⁵⁹ For country-specific research on the European Court of Human Rights’ impact on selected aspects of national legal systems, see Borelli, supra note 122. For a more general study, see A Europe of Rights: The Impact of the ECHR on National Legal Systems (Helen Keller & Alec Stone Sweet eds., 2008).

¹⁶⁰ See, e.g., Thorbjorn Bjornsson, Report 1/12 on the Effectiveness of the EFTA Court•. Structure (2011), available at www.effective-intl-adjudication.org.

¹⁶¹ Posner & Yoo, supra note 6, at 7; see also Guzman, supra note 22, at 53 (arguing that compliance rates in relation to decisions of dependent tribunals are likely to be high).

¹⁶² Helfer & Slaughter, supra note 8, at 955.

¹⁶³ For a response to these arguments, see Posner, Eric A. & Yoo, John C., Reply to Helfer and Skughter, 93 Calif. L. Rev. 957 (2005)Google Scholar.

¹⁶⁴ For a recent work, reaching nuanced conclusions on the connections between independence and effectiveness, see Erik Voeten, International Judicial Independence (Sept. 2011) (unpublished manuscript), at http://ssrn.com/abstract=1936132); see also Guzman, supra note 22, at 54.

¹⁶⁵ See, e.g., Van Heyst, B. J., The Netherlands, in Judicial Independence: The Contemporary Debate 240, 241 (Shetreet, Shimon & Deschênes, Jules eds., 1985 Google Scholar) (noting that “judicial independence means that in deciding cases that come before them, members of the judiciary are free from interference by the executive and legislative powers, political and social pressure groups, litigants and fellow members of the judiciary”).

¹⁶⁶ Mackenzie, Ruth & Sands, Philippe, International Courts and Tribunals and the Independence of the International Judge, 44 Harv. Int’l L. J. 271 (2003)Google Scholar.

¹⁶⁷ Id. at 276-79. For a more recent study on the topic, see Ruth Mackenzie, Kate Malleson, Penny Martin & Philippe Sands, Selecting International Judges: Principle, Process and Politics (2010).

¹⁶⁸ Mackenzie & Sands, supra note 166, at 283-84.

¹⁶⁹ Posner & Yoo, supra note 6, at 7.

¹⁷⁰ Helfer & Slaughter, supra note 5, at 313.

¹⁷¹ Id. at 346.

¹⁷² See Burgh House Principles on the Independence of the International Judiciary (2004), at http://www.ucl.ac.uk/laws/cict/docs/burgh_final_21204.pdf.

¹⁷³ See, for instance, Mackenzie and Sands’s discussion of how, in the Asbestos litigation before the Appellate Body, the WTO general counsel may have interfered in the procedures for admitting amicus briefs. Mackenzie & Sands, supra note 166, at 284.

¹⁷⁴ For a discussion of the link between confidentiality of deliberations and judicial independence, see Helfer & Slaughter, supra note 5, at 327.

¹⁷⁵ For a comparable discussion of feedback loops in the operation of international courts, see Alec Stone Sweet, The Judicial Construction Of Europe 55 (2004).

¹⁷⁶ Posner & Yoo, supra note 6, at 7. Posner and Yoo argue that independent judges may sacrifice the parties’ dispute-resolution needs to advance the broader legal and political regime’s normative goals, and that, as a result, they are less effective as dispute resolvers. For further discussion see Shany, Yuval, No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary, 20 Eur. J. Int’l L. 73, 81 (1999)Google Scholar.

¹⁷⁷ See e.g., Jane Ford, A Social Theory of the WTO: Trading Cultures 42-43 (2003); Slaughter, Anne-Marie, International Law and International Relations, 285 Recueil Des Cours 9, 71-72 (2000)Google Scholar.

¹⁷⁸ For example, the European Court of Human Rights is instructed to support friendly settlements only on the basis of “respect for human rights as defined in the Convention and the Protocols thereto.” European Convention, supra note 97, Art. 39(1). For a general discussion on goal prioritization, see Shany, Yuval, One Law to Rule Them All: Should International Courts Be Viewed as Guardians of Procedural Order and Legal Uniformity?, in The Practice of International and National Courts and the (De-)Fragmentation of International Law 15 (Kristian|Fauchald, Ole & Nollkaemper, André eds., 2012 Google Scholar).

¹⁷⁹ See, e.g., Keohane, Robert O., The Demandfor International Regimes, in International Regimes 141, 146 (Krasner, Stephen D. ed., 1983)Google Scholar.

¹⁸⁰ See generally Mlchael Basnett and Martha Finnemore, Rules For the World: International Organizations in Global Politics (2004).

¹⁸¹ See, e.g., Ginsburg, Tom, Locking in Democracy: Constitutions, Commitment, and International Law, 38 N.Y.U. J. Int’l L. & Pol. 707, 741 (2006)Google Scholar; Helfer & Slaughter, supra note 8, at 955.

¹⁸² See, e.g., Silberstein, Gordon, Judicial Review, in Encyclopedia of Political Science 730, 731 (Bevired., Mark, 2010)Google Scholar.

¹⁸³ See Hague Convention for the Pacific Settlement of International Disputes, Oct. 18, 1907, Art. 38, 36 Stat. 2199, TS No. 536 (“In questions of a legal nature, and especially in the interpretation or application of international conventions, arbitration is recognized by the contracting Powers as the most effective, and, at the same time, the most equitable means of settling disputes which diplomacy has failed to settle.”).

¹⁸⁴ See Shany, supra note 176, at 79.

¹⁸⁵ Helfer & Slaughter, supra note 8, at 929-30.

¹⁸⁶ For a discussion, see Sifris, Ronli, Weighing Judicial Independence Against Judicial Accountability: Do the Scaks of the International Criminal Court Balance?, 8 Chi.-Kent J. Intl. & Comp. L. 88 (2008)Google Scholar.

¹⁸⁷ See, e.g., Del Ponte & Sudetic, supra note 90, at 60, 73 (describing the direct and indirect pressures that Rwanda and NATO member states exerted on the ICTR and ICTY, respectively, with respect to specific high-pro file cases).

¹⁸⁸ Rome Statute, supra note 103, Art. 53.

¹⁸⁹ DSU, supra note 103, Arts. 16.4, 17.14.

¹⁹⁰ See supra note 11 and accompanying text.

¹⁹¹ See Kingsbury, Benedict, The Concept of Compliance as a Function of Competing Conceptions of International Law, 19 Mich. J. Int’l L. 345, 348 (1998)Google Scholar. But see Rausdala & Slaughter, supra note 16, at 539 (defining compliance as rule-confirming conduct, regardless of causation).

¹⁹² See, e.g., Forsythe, David P., The International Court of Justice at Fifty, in The International Court of Justice: Its Future Role after Fifty Years 385, 396 (Muller, A. S., Raie, D. & Thuránszky, J. M. eds., 1995)Google Scholar. Other potential factors affecting the compliance pull of remedial orders, which are not discussed here, are the orders’ specificity (arguably, more specific orders lend themselves to greater compliance), Franck, supra note 23, and the inclusion in the judgment of “legitimizing statements,” rendering it more acceptable to the parties, Treves, supra note 88, at 169.

¹⁹³ See, e.g., Eric A. Posner & Jack Goldsmith, The Limits of International Law 154-55 (2005); Guzman, supra note 5; Louis Henkln, International Law: Politics and Values 50 (1995); Downs et al., supra note 19, at 380-83.

¹⁹⁴ Franck, supra note 23.

¹⁹⁵ See, e.g., Hawkins, Darren & Jacoby, Wade, Partial Compliance: A Comparison of the European and Inter-American Courts for Human Rights, 6 J. Int’l L. & Int’l Rel. 35, 37 (2010)Google Scholar (indicating that “compliance is higher when it is at its least complicated”). For a parallel argument on the selection effects governing compliance rates, see Hafner-Burton et al., supra note 16.

¹⁹⁶ See, e.g., Simmons, Beth A., Capacity, Commitment, and Compliance, 46 J. Conflict Resol. 829, 843 (2002)CrossRef Google Scholar; cf. Raustiala, supra note 13, at 415 (noting that systems of implementation review can improve compliance with complex environmental regimes).

¹⁹⁷ Council of Europe Committee of Ministers, Supervision of the Execution of Judgments of the European Court of Human Rights: First Annual Report 10 (2007) [hereinafter Council of Europe First Annual Report].

¹⁹⁸ See, e.g., Hawkins & Jacoby, supra note 195, at 56 (noting that “full compliance has occurred in five of the 81 cases for which there are compliance reports”); see also Fernando Basch, Leonardo Filippini, Ana Laya, Mariano Nino, Felicitas Rossi & Bárbara Schreiber, The Effectivenes of the Inter-American System for the Protection of Human Rights: Quantitative Approach on the System’s Operation and the Compliance with its Decisions (2009), available at http://www.adc-sidh.org/images/files/adctheeffectivenessoftheinteramericansystemfortheprotectionofhumanrights.pdf; Cavallaro, James & Brewer, Stephanie, Reevaluating Regional Human Rights Litigation in the Twenty-first Century: The Case of the Inter-American Court, 102 AJIL 768, 774 (2008)CrossRef Google Scholar.

¹⁹⁹ See, e.g., Waldock, Humphrey, The Effectiveness of the System Set Up by the European Convention on Human Rights, 1 Hum. Rts. L. J. 1 (1980)Google Scholar.

²⁰⁰ See Council of Europe First Annual Report, supra note 197; Council of Europe Committee of Ministers, Supervision of the Execution of Judgments of the European Court of Human Rights.- Second Annual Report (2008) [hereinafter Council of Europe Second Annual Report]; Council of Europe Committee of Ministers, Supervision of the Execution of Judgments (The European Court of Human Rights-. Third Annual Report (2009) [hereinafter Council (Europe Third Annual Report].

²⁰¹ European Convention, supra note 97, Art. 41; Sims, John C., Compliance Without Remands: The Experience. Under the European Convention on Human Rights, 36 Ariz. St. L. J. 639, 645 (2004)Google Scholar.

²⁰² See, e.g., Janis, Mark W., Kay, Richard S. & Bradley, Anthony W., European Human Rights Law: Texts and Materials 99 (3d ed. 2008)Google Scholar.

²⁰³ Still, the Council of Europe’s reports on execution suggest that significant delays in payment of compensation sometimes occur. For example, according to the 2007 report, payment was not processed within the prescribed schedule in 41 percent of the cases. Council of Europe First Annual Report, supra note 197, at 219.

²⁰⁴ See, e.g., Broniowski v. Poland, 2004-V Eur. Ct. H.R. 1; öcalan v. Turkey, 41 Eur. H.R. Rep. 985, para. 210 (2005); Popov v. Russia, App. No. 26853/04 (Eur. Ct. H.R. July 13, 2006); Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2), App. No. 32772/02 (Eur. Ct. H.R. June 30, 2009); see also Wildhaber, Luzius, The European Court of Human Rights: The Past, the Present, the Future, 22 Am. U. Int’l L. Rev. 521, 534 (2007)Google Scholar.

²⁰⁵ Council of Europe First Annual Report, supra note 197, at 230; Council of Europe Second Annual Report, supra note 200, at 63; Council of Europe Third Annual Report, supra note 200 (all three reports suggesting that 46 percent of the “leading cases,” requiring general measures of compliance, remain pending before the Council of Europe two years from the date of judgment).

²⁰⁶ Hawkins & Jacoby, supra note 195, at 37.

²⁰⁷ For a survey of development related to the Inter-American Court of Human Rights’ remedial practices, Antkowiak, Thomas A., Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Right and Beyond, 46 Colum. J. Transnat’L L. 351 (2008)Google Scholar.

²⁰⁸ European Convention, supra note 97, Art. 19 (“To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights . . . .”); see also Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) (1978); Karner v. Austria, 38 EUR. H.R. Rep. 24, 24-26 (2004); Shelton, Dinah, Form, Function, and the Powers of International Courts, 9 Chi. J. Int’l L. 537, 564 (2009)Google Scholar.

²⁰⁹ Steven C. Greer, The European Convention on Human Rights: Achievements, Problems and Prospects 167-69 (20O6).

²¹⁰ European Convention, supra note 97, pmbl. (“[T]he aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realization of human rights and fundamental freedoms.”).

²¹¹ According to the 2007 Council of Europe report on judgment execution, 80 percent of the new cases submitted that year were repetitive or clone cases (that is, raising similar issues to cases already decided or pending), as were 90 percent of older cases still pending in 2007. COUNCIL OF EUROPE FIRST ANNUAL REPORT, supra note 197, at 213, 218.

²¹² See, e.g., Council of Europe Third Annual Report, supra note 200, at 40 n. 31 (noting that more than 2000 of the 2,471 Italian cases pending for execution (“representing some 31% of the total of cases pending for execution”) concern “one single problem, the excessive length of judicial proceedings”); see also Greer, supra note 209, at 158.

²¹³ See Greer, supra note 209, at 160.

²¹⁴ Cf. Jr.Holmes, Oliver W., The Path of the Law, 10 Harv. L. Rev. 457 (1897)Google Scholar (discussing the law from the viewpoint of the “bad man”). For an interesting analogy, see Gneezy, Uri & Rustichini, Aldo, A Fine Is a Price, 29 J. L. Stud. 1 (2000)CrossRef Google Scholar (finding that imposing fines on parents for picking up their children late from preschool actually increases, rather than decreases, the number of late pickups).

²¹⁵ Cf. Hathaway, Oona A., Do Human Rights Treaties Make a Difference?, 111 Yale L. J. 1935 (2002)CrossRef Google Scholar (suggesting that treaty ratification may lead to more treaty violations).

²¹⁶ See Greer, supra note 209, at 174; Lisa J. Conant, Justice Contained: Law and Politics in the European Union 50 (2002).

²¹⁷ See, e.g., Guzman, supra note 5, at 181.

²¹⁸ See, e.g., Slaughter, Anne-Marie, A Global Community of Courts, 44 Harv. Int’l L. J. 191, 216 (2003)Google Scholar; Goodman, Ryan & Jinks, Derek, How to Influence States: Socialization and International Human Rights Law, 54 Duke L. J. 621, 666 (2004)Google Scholar; Koh, Harold H, Why Do Nations Obey International Law?, 106 Yale L. J. 2599, 2649 (1997)CrossRef Google Scholar; Cavallaro, James L & Schaffer, Emily J., Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas, 56 Hastings L. J. 217, 281 (2004)Google Scholar; Beth A. Simmons, Mobilizing For Human Rights: International Law in Domestic Politics 126 (2009); see also Raustiala & Slaughter, supra note 16, at 542 (indicating that judgment compliance may derive from commitment to the same rule-of-law predisposition that underlies compliance in general).

²¹⁹ See Weber, Max, Economy and Society 216 (Roth, Guenther & Wittich, Claus eds., 1978)Google Scholar. Note that a less descriptive and more normative definition of legitimacy based on the concept of “justified authority” also exists. See, e.g., Gay, William C., The Violence of Domination and the Power of Non-violence, in Philosophical Perspectives on Power and Domination: Theories and Practices 15, 24 (Bove, Laurence F. & Kaplan, Laura Duhan eds., 1997)Google Scholar.

²²⁰ See, e.g., Robert Howse, The WTO System: Law, Politics and Legitimacy 213 (2007); Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in International Society 4 (2000); Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace 3 (7th ed. 1993); Grossman, Nienke, Legitimacy and International Adjudicative Bodies, 41 Geo. Wash. Int’l L. Rev. 107, 150 (2009)Google Scholar.

²²¹ See, e.g., Ginsburg, supra note 56, at 172 (describing the legitimacy of courts and the regimes in which they operate as “bundled” together).

²²² See, e.g., Rüdiger Wolfrum, Legitimacy in International Law from a Legal Perspective: Some Introductory Remarks, in Legitimacy in International Law, supra note 22, at 1, 6.

²²³ See, e.g., Esty, Daniel C., Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale L. J. 1490, 1519 (2006)CrossRef Google Scholar (“The overarching governance structure also shapes the legitimacy of the policy choices that emerge from the decision-maker process.”)

²²⁴ See, e.g., Helmut Breitmeier, The Legitimacy of International Regimes 19 (2008).

²²⁵ See Jean-Marc Coicaud, Legitimacy and Politics: A Contribution to the Study of Political Right and Political Responsibility 25 (2002). For a comparable notion, see Edelman, Lauren B. & Suchman, Mark C., When the “Haves” Hold Court: The Internalization of Disputing in Organizational Fields, 33 L. & Soc’Y Rev. 941, 968 (1999)Google Scholar.

²²⁶ Del Ponte & Sudetic, supra note 90, at 60.

²²⁷ Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 16(2), SC Res. 827, annex (May 25, 1993), as amended by SC Res. 1166, annex (May 13, 1998) (“The Prosecutor shall act independently as a separate organ of the International Tribunal. He or she shall not seek or receive instructions from any Government or from any other source.”).

²²⁸ Id., pmbl.

²²⁹ Id.

²³⁰ See Helfer & Slaughter, supra note 8, at 955.

²³¹ Still, one may argue that compliance with low-cost judgments generates smaller legitimacy dividends than compliance with high-cost judgments. For a discussion, see Dothan, Shai, Judicial Tactics in the European Court of Human Rights, 12 Chi. J. Int’l L. 115 (2011)Google Scholar.

²³² See, for example, the Court’s increasingly assertive jurisprudence on “due process” requirements. Howard C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights 186-87(1996).

²³³ See, e.g., Rasmussen v. Denmark, 7 Eur. H.R. Rep. 371, para. 40 (1984); Ignacio de la Rasilla del Moral, The Increasingly Marginal Appreciation of the Margin of Appreciation Doctrine, 7 German L. J. 611, 617 (2006); Berman, Paul Schiff, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155, 1202 (2007)Google Scholar.

²³⁴ See Macdonald, Ronald St. J., The Margin of Appreciation, in The European System for the Protection of Human Rights 83, 123Google Scholar ( Macdonald, Ronald St. J., Matscher, Franz & Petzold, Herbert eds., 1993)Google Scholar (“[T]he margin of appreciation is a useful tool in the eventual realization of a European-wide system of human-rights protection, in which a uniform standard of protection is secured. Progress towards that goal must be gradual, since the entire legal framework rests on the fragile foundations of the consent of the Contracting Parties. The mar gin of appreciation gives the flexibility needed to avoid damaging confrontations between the Court and Contracting States over their respective spheres of authority . . . .”); see also Carozza, Paolo G., Subsidiarity as a Structural Principle of International Human Rights Law, 97 AJIL 38, 75 (2003)CrossRef Google Scholar; Donoho, Douglas Lee, Autonomy, Self Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity Within Universal Human Rights, 15 Emory Intl L. Rev. 391, 465 (2001)Google Scholar; Helfer & Slaughter, supra note 5, at 317.

²³⁵ See, e.g., Mackenzie, Ruth, Romano, Cesare & Shany, Yuval, Manual on International Courts and Tribunals 383 (2d ed. 2010)Google Scholar; Cassel, Douglass, Inter-American Human Rights Law: Soft and Hard, in Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System 393, 395-96 (Shelton, Dinah ed., 2004)Google Scholar.

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