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Legalized Dispute Resolution: Interstate and Transnational

Published online by Cambridge University Press:  09 July 2003

Robert O. Keohane ,
Andrew Moravcsik  and
Anne-Marie Slaughter
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Abstract

We identify two ideal types of international third-party dispute resolution: interstate and transnational. Under interstate dispute resolution, states closely control selection of, access to, and compliance with international courts and tribunals. Under transnational dispute resolution, by contrast, individuals and nongovernmental entities have significant influence over selection, access, and implementation. This distinction helps to explain the politics of international legalization—in particular, the initiation of cases, the tendency of courts to challenge national governments, the extent of compliance with judgments, and the long-term evolution of norms within legalized international regimes. By reducing the transaction costs of setting the process in motion and establishing new constituencies, transnational dispute resolution is more likely than interstate dispute resolution to generate a large number of cases. The types of cases brought under transnational dispute resolution lead more readily to challenges of state actions by international courts. Transnational dispute resolution tends to be associated with greater compliance with international legal judgments, particularly when autonomous domestic institutions such as the judiciary mediate between individuals and the international institutions. Overall, transnational dispute resolution enhances the prospects for long-term deepening and widening of international legalization.

Type
Legalization and Dispute Resolution
Information
International Organization , Volume 54 , Issue 3 , Summer 2000 , pp. 457 - 488
Copyright
Copyright © The IO Foundation 2000

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References

1. Romano 1999, 723–28. By the strictest definition, there are currently seventeen permanent, independent international courts. If we include some bodies that are not courts, but instead quasi-judicial tribunals, panels, and commissions charged with similar functions, the total rises to over forty. If we include historical examples and bodies negotiated but not yet in operation, the total rises again to nearly one hundred.

2. Ibid., 709.

3. Abbott et al., this issue, tab. 1, types I–III and V.

4. Hence we do not exclude types II and V (Abbott et al., tab. 1, this issue) from our purview.

5. See Abbott et al., this issue.

6. We do not discuss the interesting case of international criminal law here. See Bass 1998.

7. This central focus on variation in the political representation of social groups, rather than interstate strategic interaction, is the central tenet of theories of international law that rest on liberal international relations theory. Slaughter 1995a. Our approach is thus closely linked in this way to republican liberal studies of the democratic peace, the role of independent executives and central banks in structuring international economic policy coordination, and the credibility of commitments by democratic states more generally. See Keohane and Nye 1977; Moravcsik 1997; Doyle 1983a,b; and Goldstein 1996.

8. Helfer and Slaughter 1997.

9. Even less independent are ad hoc and arbitral tribunals designed by specific countries for specific purposes. The Organization for Security and Cooperation in Europe, for example, provides experts, arbiters, and conciliators for ad hoc dispute resolution. Here we consider only permanent judicial courts. See Romano 1999, 711–13.

10. For a domestic case of judicial manipulation, see Ramseyer and Rosenbluth 1997.

11. Weiler 1994.

12. Helfer and Slaughter 1997.

13. Keck and Sikkink 1998.

14. Farer 1998.

15. It therefore remains unclear, on balance, whether the EC or the ECHR provides more ready access. Whereas the EC system under Article 177 allows only domestic courts, not individuals, to refer cases, the EC does not require, as does the ECHR and all other human rights courts, that domestic remedies be exhausted.

16. In response to the widespread success of the individual petition mechanism in Europe, the growth of the number of states party to the convention, and an increasing backlog of cases, the Council of Europe had sought to improve upon the existing judicial review machinery. After months of arduous negotiation, a majority of states signed Protocol 11, which, once ratified, will abolish the European Commission on Human Rights and create a permanent European Court of Human Rights. For a discussion of both systems, see Moravcsik 2000.

17. Sands, Mackenzie, and Shany 1999, 233–45.

18. Advisory Opinion OC-5/85, 5 Inter-American Ct. of H.R. (ser. A) (1985), 145, cited in Henkin et al. 1999, 525.

19. The EC, with qualified majority voting, is an exception. But here the unique power of proposal in the legislative process that generates most EC economic regulations is held by the Commission, which is unlikely to propose such a rollback of EC powers. Tsebelis 1994.

20. Weiler 1991.

21. Sands, Mackenzie, and Shany 1999, 148.

22. Drzemczewski 1983.

23. Although customary international law is generally viewed as self-executing in the United States, and therefore can be applied by courts as domestic law, most international treaties do not create private rights of action. U.S. courts, moreover, have been hesitant to enforce customary international law against a superseding act of the federal government. See Henkin 1996; and Jackson 1992.

24. We use the term “transnational” to capture the individual to individual or individual to state nature of many of the cases in this type of dispute resolution. However, many of the tribunals in this category, such as the ECJ and the ECHR, can equally be described as “supranational” in the sense that they sit “above” the nation-state and have direct power over individuals and groups within the state. One of the authors has previously used the label “supranational” to describe these tribunals (Helfer and Slaughter 1997); no significance should be attached to the shift in terminology here.

25. Not surprisingly, domestic legal embeddedness is less common than widespread domestic access, since the former is a prerequisite for the latter.

26. Eissa 1998.

27. Weiler 1998. Selection of a judge of an identifiable political stripe does not always guarantee corresponding decisions, however. Once on the bench, judges are subject to a specific set of professional norms and duties and develop their personal conception of the role they have been asked to fill in ways that can yield surprises. A paradigmatic case is President Eisenhower's appointment of Justice William Brennan, who gave little sign of the strong liberal standard-bearer he would become.

28. Ramseyer and Rosenbluth 1997.

29. Feldman 1986, 1004.

30. Lecture by Mancini, Federico, Public Representation: A Democratic Deficit? Conference at Harvard University. Center for European Studies, 29–31 January 1993Google Scholar.

31. Welch 1992.

32. Forsythe 1994.

33. See Bass 1998; and Bassiouni 1998.

34. Helfer and Slaughter 1997.

35. See Alter 1998b; Stein 1981; and Dashwood and White 1989.

36. S. Res. 196, 79th Cong., 2d sess., 92 Cong. Rec. 10706 (1946).

37. Ibid.

38. Briggs 1985, 377.

39. Schwebel 1996.

40. Rosenne 1995.

41. Ibid.

42. ICJ, Military and Paramilitary Activities in and Against Nicaragua. (Nicaragua v. United States of America.) Merits, Judgment. ICJ Reports 1986, 97–99Google Scholar.

43. See New York Times, 29 October 1986, A3.

44. See New York Times, 30 September 1990.

45. Moravcsik 1995.

46. Case 120/78, Rewe-Zentrale AG v. Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon), 1978Google Scholar.

47. Helfer and Slaughter 1997.

48. Case 26/62, N. V. Algemene Transp. and Expeditie Onderneming Van Gend and Loos v. Nederslandse administratie der belastingen, 1963 E.C.R. 1, 12Google Scholar.

49. This dynamic is not limited to Europe. David Wirth explains it succinctly in his analysis of compulsory third-party dispute resolution as a mechanism for enforcing international environmental law. Wirth 1994.

50. Franck 1990.

51. Mattli and Slaughter 1995.

52. Weiler 1998, 22. The ECHR has experienced considerable variation in its effectiveness, which does not seem on its face to be well explained by embeddedness. With respect to the ECHR, we believe that more research is needed to evaluate explanations that rely on embeddedness.

53. See Keohane and Hoffmann 1991; Alter 1998a; and Pollack 1997.

54. See White 1990; Glendon 1991; and Sunstein 1996.

55. Chayes 1965.

56. Rosenne 1995, 270 n. 17. See also Nuclear Tests (Australia v. France), 1974 I.C.J. 253Google Scholar (20 December); and Nuclear Tests (New Zealand v. France), 1974 I.C.J. 457 (20 December)Google Scholar.

57. Schwebel 1996.

58. Ibid.

59. See, for example, Charney 1994.

60. Schwebel 1996.

61. See Alter 1998a: and Alter, this issue.

62. Case 26/62, N. V. Algemene Transp. and Expeditie Onderneming Van Gend and Loos v. Nederslandse administratie der belastingen. 1963 E.C.R. 1, 12Google Scholar.

63. Bernhardt 1994.

64. Cossey v. United Kingdom, 184 E.C.H.R., ser. A(1990)Google ScholarPubMed.

65. Helfer and Slaughter 1997.

66. See Burley and Mattli 1993; and Weiler 1991 and 1999.

67. See Stein 1981; Weiler 1991; and Burley and Mattli 1993.

68. This conclusion is not uncontroversial. Some political scientists argue that these national courts were in fact following the wishes of their respective governments, notwithstanding their governments' expressed opposition before the ECJ. The claim is that all EC member states agreed to economic integration as being in their best interests in 1959. They understood, however, that they needed a mechanism to bind one another to the obligations undertaken in the original treaty. They thus established a court to hold each state to its respective word. See Garrett 1992; Garrett and Weingast 1993; and Garrett, Kelemen, and Schulz 1998. On this view, intrajudicial politics within the EU were either anticipated by the founding states or were epiphenomenal. For a debate on precisely this point, see Garrett 1995; and Mattli and Slaughter 1995.

69. Alter 1996b.

70. See Alter 1996b; and Plötner 1998.

71. Craig 1998.

72. See Weiler 1991; and Burley and Mattli 1993.

73. Alter 1996b, and 1998a,b.

74. Mattli and Slaughter 1998b.

75. Craig 1998.

76. Plötner 1998.

77. Jarmul 1996.

78. See Weiler 1994; and Finnemore and Sikkink 1998.

79. See Harlow and Rawlings 1992; and Alter and Vargas 2000.

80. See Helfer and Slaughter 1997; and Stone Sweet 1999.

81. Stone Sweet 1998, 330. See also Harlow 1992.

82. Golub 1996.

83. Moravcsik 2000.

84. This paragraph and the subsequent one rely on Hudec 1999, especially 6–17.

85. The annual number of cases before the WTO has risen to almost twice the number during the last years of GATT; but Hudec argues that this change is accounted for by the new or intensified obligations of the Uruguay Round, rather than being attributable to changes in the embeddedness of the dispute resolution mechanism. Hudec 1999, 21. Hudec acknowledges, however, that he is arguing against the conventional wisdom.