Forum 3: Compliance, Adjudication and Dispensation

Chaired by Professor Nico Schrijver

The corpus of international law has grown greatly since the end of the Cold War. But has international law also become better obeyed? When do states comply with international law, when do they not? How can we assess the effectiveness of international courts in ensuring compliance with international law? Has the International Court of Justice been successful over the past twenty years? Or has the Security  Council become the ultimate dispenser of (and with) international law?

Assessing the effectiveness of international courts: the role of remedies policies

PROFESSOR YUVAL SHANY, Hersch Lauterpacht Chair in Public Internaitonal Law, Hebrew University

Abstract:The paper, which is part of the author’s broader work in the field of assessing the effectiveness of international courts, seeks to ascertain the manner in which the remedies provided by a number of international courts are reflective of their goal-perception, and conducive to the attainment thereof. Clearly, remedies design is a critical tool in advancing the goals of international law that have been set by the court mandate-providers (such goals are a principal benchmark for ascertaining court effectiveness). Still, courts may develop over time, in response to changing conditions, new goal-perceptions that may exceed the expectations of the mandate-providers and lead to the development of new remedies policies. Moreover, the need to secure good levels of compliance with remedial orders may serve as a limit on the existing remedies policies, and invite courts to “aim low” in the remedies they issue. Changes over times in remedies policies may be therefore indicative of changing goal-perceptions or new compliance-related dynamics.

The paper will attempt to flesh out the relationship between goals, remedies and compliance, using recent trends in the decisions of the ICJ, Inter-American Court of Human Rights and European Court of Human Rights, as case studies. It will explore, in particular, the degree to which the remedies awarded by the ICJ underscore its perceived dispute settlement role (reflected in a “splitting of the difference” approach), the utility of the Inter-American’s Court “high-aiming” approach for goal attainment, and the link between the European Court’s workload crises and changes in its remedies policies.

Biography: Yuval Shany is a graduate of Hebrew University (LL.B. cum laude 1995), NYU (LL.M. 1997) and University of London (PhD 2001). He teaches international law in Jerusalem  and is a research fellow at the Israel Democracy Institute. Shany co-directs the Project on International Courts and Tribunals (PICT) and coordinates research groups studying the impact of international courts (www.effective-intl-adjudication.org; www.domac.is). He has published books and articles on international adjudication, human rights, international humanitarian law and other international law topics, and is the co-editor-in-chief of the Israel Law Review. In recent years, he was a visiting professor in Columbia, Michigan, Georgetown and Sydney.

Shany - Draft ESIL Paper »

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The Security Council as dispenser of (or with) international law

PROFESSOR STEFAN TALMON, Professor of Public International Law, University of Oxford

Abstract: Since the early 1990s, the Security Council has been fairly active and innovative in using its powers under the UN Charter, invoking its Chapter VII authorities to create specific legal frameworks to address threats to international peace and security. While these frameworks typically incorporate specialized bodies of law as part of the legal foundation of the Council's response there are cases in which the Council has "adapted" these bodies of law on an ad hoc basis in order to meet the threat. The Council has tailored existing rules of international law to better work in a specific set of circumstances. What is euphemistically referred to as an ad hoc "adaptation" of applicable rules of international law to a specific set of circumstances in effect amounts to an "alteration" or even "abrogation" of binding treaty provisions or rules of customary international law with regard to a specific case or specific actors. The Security Council on a case by case basis tailors legal rules to suit the needs of international peace and security or, adopting perhaps a more sober outlook, the political needs of individual Council members, thereby contributing to a culture of exceptionalism. The paper will ask what the creation of special legal regimes for "special cases" means for the concept of the rule of law and what it means for international law as law if its binding rules are placed at the disposal of a political body like the Security Council.

Biography: Stefan Talmon is Professor of Public International Law in the University of Oxford and a Fellow of St Anne’s College, Oxford. He practices as a Barrister from 20 Essex Street Chambers in London.

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The International Court of Justice 1989-2009: at the heart of the system

PROFESSOR HUGH THIRLWAY, Visiting Professor of International Law, University of Leiden

Abstract:  Decisions of the ICJ (judgments and advisory opinions) given since 1989 have of course made major contributions to substantive law; but a proper survey of these would go beyond the practicable limits of a conference paper. The purpose of this paper is thus to examine developments relating to the Court in a more specific sense, and from two main angles: first as regards its position as the principal judicial organ of the United Nations, and as a State dispute-settlement body; and secondly as regards its contribution to the development of the law governing dispute settlement through its pronouncements. Under the first head, account will be taken of the increased number of cases brought before the Court; reference to it by a wider clientele of States; and more significant use of the advisory procedure. Certain trends are to be noted in acceptances of jurisdiction under Article 36 (2) of the Statute, and other jurisdictional instruments, the possible usefulness of forum prorogatum and Art. 38 (5) of the Rules of Court has also been demonstrated. In the second category, attention will be drawn to, for example, a trend towards favouring jurisdiction, while respecting States’ choices; a greater readiness to indicate provisional measures (now established as binding); and emphasis on the duty to settle disputes. Procedural developments, desirable in view of the increased workload, will also be noted as will the limits on these imposed by the rigidity of the ICJ Statute.

Biography: Hugh Thirlway studied at Cambridge and Nancy (France), and practised briefly as a solicitor before joining the Registry of the ICJ in 1962. He was Principal Legal Secretary and Head of the Legal Department from 1987 to 1994, when he was appointed Professor of International Law at the Graduate Institute of International Studies in Geneva. After retiring from the Institute, he was re-appointed to his former ICJ post for a few years, before retiring in 2008. He continues to teach as a Visiting Professor, e.g. at the Universities of Bristol (UK), Leiden (Netherlands) and Wuhan (China).

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International law and domestic political coalitions: the grand theory of compliance with international law

PROFESSOR JOEL TRACHTMAN, Professor of International Law, Fletcher School of Law and Diplomacy

Abstract:  Compliance with international law is always dependent upon a contemporaneous domestic political decision to engage in the behavior that constitutes compliance. This Article articulates the importance of the interdependence between home-state domestic politics and foreign-state domestic politics in determining compliance. International legal commitments allow the formation of domestic coalitions between those who will benefit from their own state’s compliance with the international legal rule in question, and those who will benefit from other states’ compliance with the international legal rule. This Article extends the rationalist approach to compliance with international law into the domestic politics of the target state. The theory developed in this Article builds on established approaches to international relations in the political science literature, in particular the “liberal” theory of international relations associated with Andrew Moravcsik, the two-level game theory approach associated with Robert Putnam, and the “second image reversed” approach associated with Peter Gourevitch. This Article extends these approaches (i) from broader international relations to international law, and (ii) from adherence to compliance. The model advanced in this Article allows the formalization and contextualization of a variety of factors that up to now have been viewed in isolation as explanatory variables in the decision to comply. Policymakers can use this model as an analytical template by which to assess whether their counterparties would comply with any undertakings they may make.

Biography: Professor Trachtman is on the Board of the American Journal of International Law and the Advisory Board of the European Journal of International Law. Recent books include The International Law of Economic Migration: Toward the Fourth Freedom; Ruling the World: Constitutionalism, International Law, and Global Governance, and The Economic Structure of International Law. From 1998 to 2001, he was Academic Dean of the Fletcher School. He graduated in 1980 from Harvard Law School, where he served as editor in chief of the Harvard International Law Journal. His undergraduate education was at the London School of Economics and Columbia College.

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