News from the Centre

International Adjudication: Expectations, Intentions and Consequences

06.12.2016 In political apparently increasing stormy times, David Caron takes a critical look at international courts and tribunals and warns against expecting them to compensate for political failures. But even when a lot of expectations on international jurisdiction cannot be met, the impacts of these institutions are potentially far-reaching in the long run.


Waves of populist movements and national re-identification seem to provide a climate that blows a cold wind on the face of international cooperation [1]. So different the roots might be, the related tones of this rumbling discourse can virtually be found everywhere in the world. Such movements have direct consequences for dissidents and they pursue ethno-political strategies of cleansing that seem to question the decades of practice in liberal and cooperative negotiation processes over regional and global challenges. At the same time, the internationally observable development indicates that those who perceived the societal development of the last years as more or less inclusive, were not looking closely enough.

The internationally renowned lawer David Caron focused in the 20th Käte Hamburger Lecture on an analytical separation of the legal, social, and political functions of international courts [2], because, as he illustrated by different examples: a diverse set of institutions, political authorities and public arenas accompany the work of international courts over long periods. This environment creates a horizon of expectations which the courts have to reflect, but assuredly it creates a field of forces that opens up a new research field to (historically informed) scientific work.

Thereby, the intentions contributing to open up a case to the International Court of Justice (ICJ) or the establishment of a tribunal are one thing. On the other hand, the consequences resulting from the adoption of a case and the tribunal’s work are barely predictable. The duration of such procedures, normally lasting over several years, is one reason for that. Changes in the political context, public opinion-forming processes or international agreements (e.g. on maritime law) can transform the context of the institution’s work and therewith the socio-political, but also legal meaning of a verdict. Regionally different legal developments complicate every prediction additionally [3].

In the context of the Centre’s work, the concern about the independence of courts*, and in this case particularly the international (arbitral) jurisdiction, has recalled a distinction made by Scott Barrett in his keynote speech for the Midterm Conference in July 2015. Barrett, one of the outstanding experts on international negotiations on climate and environmental issues, argued that the term 'cooperation' raises expectations that often cannot be met. Instead, humanity is better at coordinating things, for example strategies to combat epidemics (smallpox). The claim made by international judges that the compensation for deficits of national legislatives is firstly not their task and will secondly undermine the institution's legitimacy in the long run ('blame not the court but the legislator') is on this line of argumentation: for institutions (or expert systems) acting in the respective subsystems it is essential to preserve their efficiency and legitimacy, if necessary also towards 'global' expectations ('narratives'). However, once a decision is made, and as time goes by, it might encourage not only our understanding of the possibilities (and limits) of global cooperation, but also the process itself.

The question on a legal institution’s legitimacy (authority) was subject for an intensive debate during a workshop that took place at the WZB Berlin Social Science Center, where a chosen circle of international lawyers discussed with David Caron the issues mentioned at the Käte Hamburger Lecture on the day before. The workshop was co-organized with the Centre’s Alumni Fellow Prof. Christian Tams (University of Glasgow).

* The 20th Käte Hamburger Lecture took place in the Superior Court of Justice Berlin, a history-charged place where the law was bent like probably in no other place of adjudication. Judge Dr. Flockermann of the Superior Court of Justice Berlin openly addressed this point and showed the participants of the Lecture the room where the people’s court of national-socialist Germany had administered injustice during the last years of war.

 

[1]

The Centre’s Co-Directors Claus Leggewie and Dirk Messner on current developments:

Dirk Messner (2016): 'Trump’s White House and Paris Climate Agreement: Is Europe up for the challenge?', Katoikos.eu, Climate, Dialogue, Op-ed, 18 November 2016.

Dirk Messner and Hans Dembowski (2016): 'Global Governance: "Historically unprecedented"', D+C Development and Cooperation, 24 November 2016.

Dirk Messner (2016): 'Trump im Weißen Haus – Was wird aus "Paris", der globalen Agenda für nachhaltige Entwicklung, der Weltordnung?', International Development Blog, 15 November 2016.

Dirk Messner (2016): 'Pariser Klimaabkommen: Europa kann die Lücke füllen', ZEIT online, 16 November 2016.

Claus Leggewie (2016): 'Yes, we couldn't. Barack Obamas erfolgreiches Scheitern', Blätter für deutsche und internationale Politik, November 2016.

Claus Leggewie (2016): 'Faschist mit amerikanischem Antlitz? Trumps Schatten über Amerika und der Welt', Blätter für deutsche und internationale Politik, December 2016.

 

[2]

David D. Caron (2011): 'International Courts and Tribunals: Their Roles Amidst a World of Courts', International Centre for Settlement of Investment Disputes, Foreign Investment Law Journal 26 (2): 1–13.

Christian J. Tams (2016): 'World Courts as Guardians of Peace?', Global Cooperation Research Papers 15, Duisburg: Käte Hamburger Kolleg / Centre for Global Cooperation Research.

 

[3]

International IDEA and Hanns Seidel Stiftung (eds.) (2016): 'Judicial Review Systems in West Africa. A Comparative Analysis', leading authors: Markus Böckenförde and Babacar Kanté, Stockholm / Munich: IDEA and Hanns Seidel Stiftung.