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

Abstract

During the last twenty years, the world has experienced a sharp rise in the number of international courts and tribunals, and a correlative expansion of their jurisdictions. These occurrences have dramatically affected and will continue to affect the fields of international law and international relations. The creation and operation of international judicial bodies that are capable of enforcing international commitments, interpreting international treaties, and settling international conflicts have facilitated the growth of international legal norms and cooperative regimes governing important areas of international law and politics, such as economic relations, human rights, and armed conflicts. International courts — understood in this article as independent judicial bodies created by international instruments and invested with the authority to apply international law to specific cases brought before them — have thus become important actors as well as policy instruments in the hands of international lawmakers. Such courts serve, in some respects, as the lynchpin of a new, rule-based international order, which increasingly displaces or purports to displace the previous power-based international order.

Is Compliance the Name of the Effectiveness Game? Goal-Shifting and the Dynamics of Judicial Effectiveness at the WTO

“…This focus has been especially conspicuous in the literature on the effectiveness of the World Trade Organization (WTO) dispute settlement system (DSS), as it edged away from its diplomatic orientation under GATT toward a more legalized one with the formation of the WTO. Thus, the effectiveness of the WTO DSS has often been assessed against the benchmark of WTO Member compliance with DSS rulings (see, e.g., Wilson, 2007; McRae, 2008; Davey, 2005; Horlick and Coleman, 2008; Lee, 2011; Davey, 2009; Epstein et al , 2009; Varella, 2009; Posner and Yoo, 2005: 46–50), understood as ‘a causal relationship between judicial decisions and state practice, leading to a convergence of the two’ (Shany, 2012a: 261).…”

“… 1 On the problems of compliance-based effectiveness models, see Shany (2012a: 227–229), Shany (2012b). …”

“… 5 On the normative aspects of the goal-based approach, see Shany (2012a: 230–231); Shany (2014: 14–16). …”

“…Outcome indicators ‒ the quintessential effectiveness indicators ‒ examine whether the organization's outputs and their social effects are consistent with the organization's goals. Shany (2012a: 238).…”

“… 14 Shany (2012a: 246); Private attorney (16 July 2012) (one goal of the DSS, as part of the WTO system, is ‘to assure that the system remains workable’). …”