José Alvarez Functions of International Courts

What are International Judges for?
The Main Functions of International Adjudication
Oxford Handbooks Online

What are International Judges for? The Main Functions of International
Adjudication*
Jos E. Alvarez
The Oxford Handbook of International Adjudication
Edited by Cesare P. R. Romano, Karen J. Alter, and Chrisanthi Avgerou
Print Publication Date: Dec 2013
Online Publication Date: Feb
2014
Subject: Law, International Law

DOI: 10.1093/law/9780199660681.003.0008
Abstract and Keywords

This chapter analyzes the main functions of international adjudicators, namely dispute settlement, fact-finding,
lawmaking, and governance. It suggests that all the functions of international adjudicators boil down to one: to
provide useful independent information to rational state actors. Adjudicative fact-finding and lawmaking serve to
promote the settlement of a dispute, increase the costs of a discrete violation of the law, and, by clarifying the law
for other World Trade Organization parties, assists in the governance of the trade regime as well as the regulation
of states that are presumptively deterred from taking certain measures or actions.
Keywords: international adjudicators, dispute settlement, fact-finding, lawmaking, governance
1. Introduction 159
2. The Complex Dispute Settlement Function 161
3. The Fact-Finding Function 166
4. The Lawmaking Function 168
5. The Governance Function 170
6. Conclusions 176
(p. 159) 1 Introduction

INTERNATIONAL judges and arbitrators are commonly portrayed in simple terms: they are interstate dispute settlers
engaged in avoiding or deterring threats to peace. This is suggested by the United Nations Charter,1 other
treaties,2 and scholarship across time.3 The intertwined functions of settling disputes and maintaining peace, selfevident to those at the turn of the nineteenth century, continue to explain the function of todays diverse courts
and tribunals. Those functions are clearly engaged when International Court of Justice (ICJ) judges settle territorial
disputes or those involving the use of force, when the UN Security Council establishes the International Criminal
Tribunals for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) pursuant to its
Chapter VII powers, or when the International Criminal Court (ICC) is established on the premise that without criminal
accountability there can be no lasting peace in societies victimized by mass atrocities. Trade and investment
lawyers also rely on the conflict resolution rationale. Trade lawyers describe the function of the World Trade
Organizations (WTOs) dispute settlement system as resolving disputes that historically have led to wider interstate
frictions while defenders of the International Centre for Settlement of Investment Disputes (ICSID) argue that
investor-state arbitrations are necessary alternatives to gunboat diplomacy. Of course, the dispute settlement
function also has been affirmed by innumerable international judges and arbitrators, most often in the course of
disclaiming that they have any role other than applying pre-existing law to settle the narrow dispute before them.4
The dispute settlement function explains much of what international adjudicators do, but as many contributors to
Page 1 of 16
PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights
Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford
Handbooks Online for personal use (for details see Privacy Policy).
Subscriber: London School of Economics and Political Science; date: 24 September 2015
What are International Judges for? The Main Functions of International Adjudication
this volume indicate, it is insufficient. To the extent that (p. 160) a theory of adjudication aspires to explain the
functions of judges or arbitrators, as Besson suggests in her contribution,5 we might focus, alternatively, on what
those who establish courts and tribunals seek to achieve directly in the course of adjudication,6 on the broader
societal goals that such legal proceedings are believed to secure,7 or adopting a more internal perspective, on
what the adjudicators themselves see as their function.8 In addition, a functional analysis might address only the
most generalizable functions shared by all or most of these bodies at the expense of considering the more
specialized roles that only some of these courts take on.9 To add to the terminological confusion, those who
address the systemic functions of adjudication, at the most general of levels, rarely agree on the descriptive
labels they use. In this volume, Besson, for example, distinguishes the law-identifying from the lawmaking
function, indicating that both occur in the course of settling disputes (which she describes as the lawenforcement function).10 She also identifies a distinct review function consisting of judicial control over
executive action.11 Elsewhere, von Bogdandy and Venzke have described the functions of courts as settling
disputes, stabilizing normative expectations, making law, and controlling and legitimating public authority.12 At the
risk of inspiring more confusion, this chapter seeks to describe the complex and sometimes contradictory systemic
aspects of dispute settlement as an objective matter, taking into account both the goals of stakeholders as well
as the adjudicators themselves. It pays particular attention to the ICJ, international criminal courts and the
respective mechanisms used to resolve trade and investment disputes.
(p. 161) 2 The Complex Dispute Settlement Function

The dispute settlement function follows from the standard rational actor explanation for why states establish
international courts and tribunals: these exist in response to states functionalist needs. Since states sometimes
need to settle disputes between themselves, they establish systems to adjudicate such disputes when this is in
their interests. Under one version of this functionalist or rational choice account, binding dispute settlement
emerges only when states needs to secure compliance with a regime outweigh the reputational or other costs
associated with breach.13
The simplest version of the dispute settlement function views international courts and tribunals simply as vehicles
for securing the goals of the state disputants before them. This approach treats international adjudicators as
agents for state principals.14 As a Weberian ideal type, this principal/agent account of dispute settlement has
distinct implications. As state agents, international adjudicators owe their delegated powers to their principals. They
owe no duties to non-litigating states or others, including the ephemeral international community. Since the
function of these agents is to amicably settle interstate disputes where the results have to be voluntarily accepted
by the losers, adjudicators should avoid exacerbating them. Accordingly, the wise international dispute settler
should not exceed the basis of the jurisdictional consent given by the parties and should exercise the passive
virtuesthey should deploy concepts of admissibility, standing, and mootness to narrow the dispute before them
and increase the likelihood of successful settlement or compliance.15 Adjudicators should not take on legal or
factual issues not raised by the disputants and should resist third party interventions or court-initiated processes
for fact-finding. Adjudicator-agents should avoid accusations of judicial (p. 162) lawmaking by rendering
opinions containing only as much reasoning as necessary, by applying deferential canons of interpretation and by
adhering to codes of judicial behavior consistent with the formal rule of law. A faithful agent of the litigating
parties should, for example, adhere strictly to the plain meaning rule in the interpretation of treaties; find
customary law only in express state practice paired with explicit opinio juris; and avoid filling gaps in the existing
law in ways that would be seen as exceeding the narrow delegation of power given in the tribunals choice of law
clause.16 According to this ideal type, tribunals within discrete regimes, such as those concerned with
international criminal law, trade, or investment, should consider only the regime-specific law that they are licensed
to apply and leave consideration of general public international law to courts authorized to examine it (like the ICJ).
Adjudicators, in short, should avoid rulings that would make state principals reluctant to comply with them.17
Posner and Yoo, among others, have argued that the principal/agent theory best explains the institutional features
of effective international courts and tribunals.18 States efforts to protect themselves against agency slippage
explain their efforts to screen potential adjudicators, to limit and monitor their decisions, to punish and reward
faithful agents, and to build checks and balances requiring continued coordination between adjudicators and
their state principals.19 In this fashion, principal/agent theorists explain other common institutional features,
including why the enforcement of international adjudications remains subject to state control, why state-appointed
Page 2 of 16
ad hoc adjudicators continue to be encouraged (even in the ICJ) or why even widely touted independent
international criminal courts remain tethered to state principals in some respects.20 The principal/agent theory also
explains what adjudicators do even when they are given more extensive powers. It explains why, for instance, the
ICJ seems reluctant to exercise its powers to appoint its own fact-finders or to permit third party interventions or
amicus; why WTO panels have generally adhered to the principle of judicial economy; or why most ICSID (p. 163)
arbitrators resist factual assertions or legal arguments not presented by the disputants.21 It also may explain why,
as noted, all or most international adjudicators routinely deny, consistent with the Weberian ideal type, that they
are engaging in lawmaking.22 Finally, it may explain a number of prominent ICSID annulments deferring to the
interests of sovereigns,23 shifts in ICJ jurisprudence over time,24 as well as European courts resort to judiciallycreated innovations, like the margin of appreciation or proportionality.25
But many of those who would defend the centrality of the dispute settlement function would resist the simplistic
principal/agent explanation for how it works or the resulting ideal type prescriptions for how it should work.26 Few
see adjudicators as mere puppets subject only to the pull of states. Most international lawyers, judges, and
arbitrators, contend, on the contrary, that successful dispute settlement requires autonomous impartial
adjudicators who are and are seen as independent of the states that consent to litigate before them.
Consider, for example, the complex views of what it means to be a dispute settler propounded by Hersch
Lauterpacht in 1933, when the only sitting permanent international court in existence was the Permanent Court of
International Justice (PCIJ).27 While Lauterpacht saw international courts as solvers of disputes that could threaten
the peace, he would have recoiled at the suggestion that international adjudicators were the mere agents of the
disputing parties.28 His classic book on The Function of Law in the International Community sought to prove that
there was no such thing as a political dispute not subject to legal scrutiny, notwithstanding (p. 164) the efforts
of some states to restrict the jurisdiction of international courts from considering states essential interests.29
Such self-judging clauses reflected, in his view, a disreputable refusal to be bound by the rule of law, which
should not be countenanced. Lauterpacht argued that international judges were not the agents of political elites;
they were servants of the rule of law beholden to much wider stakeholder considerations. For Lauterpacht, as for
others present at the creation of modern systems for institutionalized international adjudication, states resort to
legalized international dispute resolution because it is an alternative to politicized dispute resolution by
diplomats.30 They turn to legalistic dispute resolution because it is based on the application of recognized legal
rules. Lauterpacht enumerated the many ways that international judges were entitled (indeed duty-bound) to
engage in innovative lawmaking (including teleological treaty interpretations) to avoid the degeneration of disputes
into threats to peace. Since he argued that international judges were enjoined from invoking non liquet,
Lauterpacht suggested ways for them to find law where no formal law on a point exists, including through the use
of creative analogies based on general rules, ready recourse to general principles, applications of private law
concepts, and forms of judicial reconciliation to balance competing principlesall deployed under a canon of
effectiveness that would embrace the larger needs of the international community.31 Lauterpachts prescient
descriptions of the dispute settlement function explain the myriad departures from the ideal type exhibited by
contemporary courts of general jurisdiction or those operating within human rights, international criminal law, trade,
or investment.32
Martin Shapiros account of the triadic dispute settlement function insightfully distinguishes adjudicators from
mere state agents. Shapiro argues that the root concept involved in all adjudication is a triad: two persons coming
into conflict that they cannot themselves resolve who call upon a third party, a stranger to both and therefore
impartial, for resolving it.33 Shapiro focuses on how the third party in dispute settlement overcomes the basic
instability of the triad, that is, how the (p. 165) adjudicator avoids the delegitimizing perception that he or she has
ruled in favor of one of the disputants by simply rendering a decision that is two against one.34 Like Lauterpacht,
Shapiro accepts that triadic conflict resolution, even when based on pre-existing rules of law, inevitably involves
judicial lawmaking.35 But unlike Lauterpacht who urges that judicial lawmaking be done explicitly and publically,
Shapiro argues that the need for successful conflict resolution requires the third party, the adjudicator, to lie
about whether they are making law in their rulings, that is, to pretend to engage in the mere application of law.36
This account of triadic dispute settlement is consistent with but does not require the deployment of the passive
virtues. It accepts that third-party adjudicators may deploy diverse legitimizing strategies that vary with the
institutional context.
Like Shapiro and Lauterpacht, Karen Alter argues that international courts and tribunals are typically established to
Page 3 of 16
exercise relative autonomy (or what others call bounded discretion) from the states that establish them or the
litigants before them.37 This explains why those who establish such entities take pains to emphasize their
independence, as through rules precluding conflicts of interest for adjudicators and barring ex parte contacts,
provisions enumerating professional qualifications for office and lengthy terms for those serving on permanent
courts. Alter argues that international adjudicators are more appropriately seen as trustees rather than mere
agents. The trustee account explains not only many of the characteristic institutional features of these tribunals but
also why, contrary to the ideal type, we expect international adjudicators to give reasoned opinions that have
expansive potentialthe better to guide the behavior of regime participants and to prevent future disputes. It also
explains why international adjudicators of all stripesfrom the ICJ to the WTOrespect and produce regimespecific precedent even without explicit authority from their principals.38 If judges are in effect trustees this would
also explain why some of them adopt expansive notions of admissibility, standing, (p. 166) and mootness when
these are seen (within particular regimes such as trade) as appropriate legitimizing strategies,39 or why some
adjudicators favor greater transparency or accept views beyond those of the litigants (as through amicus briefs in
ICSID or efforts toward victim participation in the ICC).40
3 The Fact-Finding Function

Closely related to the dispute settlement functionand as widely accepted if rarely labeled as suchis the
proposition that all or most international adjudicators, like their national counterparts, make conclusive factual
determinations of what actually occurred as a necessary concomitant to resolving disputes. Finding facts is as
essential as identifying the law.41 It is assumed that all adjudicators need to establish the truth and not merely
determine the law. Depending on the nature of the dispute and the regime, some international dispute settlement
mechanisms pay closer attention to the fact-finding function than others. Some contain specific rules for engaging
in fact-finding, include authorizations to appoint special masters or permit the tribunal to change its location to
better accommodate the evidence or witnesses. Some, like the WTO, may reserve the fact-finding function to a
lower chamber (i.e. WTO panels).42 On the other hand, the dominance of facts in some cases, as in international
criminal courts or disputes involving claims over territory, may make fact-finding the most important function of
some adjudications.43
The fact-finding function has generated a number of controversies that need not be addressed here, including
whether the fact or law distinction itself is viable.44 The relevant literature also enumerates the ways that
international adjudicators, whether (p. 167) or not operating under a set of specific rules, have developed the law
relating to the production, admission, and evaluation of evidence.45 By engaging in fact-finding, international
adjudicators develop law, including rules on the burden and standards of proof, the propriety of drawing adverse
inferences from a partys failure to produce evidence or the weight to be given admissions against interest by a
party.46 Indeed, for tribunals that do not operate under a set of detailed rules of procedure and evidence, such as
the ICJ, the legal rules applicable to the fact-finding function are almost entirely judicially created.47 These rules,
like other judge-made law produced by the ICJ, exert a powerful influence on other tribunals, which also resolve
comparable questions.48
A considerable portion of the relevant literature has been critical of how international adjudicators engage in factfinding. While there is agreement that, absent institutional rules to the contrary, judges and arbitrators are
necessarily charged with making those factual findings needed to apply the law, there is widespread
disparagement of whether international courts and tribunals have done a good job in finding facts and no shortage
of suggestions for institutional (and attitudinal) reform. Some have contrasted the fact-finding that occurs in
national courts or arbitrations with that evident in ICJ opinions, for example. It is said that unlike ICSID arbitrations,
for instance, the ICJ too often relies on fact-finding undertaken by others, rarely deviates from written pleadings,
fails to cross-examine witnesses and does not encourage amicus or conduct on-site hearings.49 For these
reasons, the ICJ is often accused of being insufficiently pro-active in deploying its own powers to find facts
(including by appointing experts as needed). Some suggest, more generally, that international adjudicators fear or
avoid certain forms of facts, such as scientific facts requiring technical expertise or probabilistic judgments.50
The fact-finding difficulties faced by international adjudicators have been explained or rationalized on a number of
grounds. International adjudicators face special problems in undertaking the fact-finding function, after all,
including the need to operate at a considerable geographic, cultural, and linguistic remove from (p. 168) the
Page 4 of 16
place giving rise to the dispute and the absence of enforcement or subpoena powers to compel the production of
evidence or secure witnesses. Some international adjudicators, particularly those who lack trial-level experience,
may also lack the expertise to decide complex factual issues.51 Others contend that we tolerate a high level of
fact-finding errors by international criminal courts, for example, because its judges can take refuge in the fact that
even if these defendants did not commit some of the acts alleged, they are likely to have committed equally
heinous offenses.52 This highlights a more important point: the extent and quality of judicial fact-finding is heavily
dependent on structural factors such as the tribunals budgetary constraints, the availability of other institutional
support (such as that provided by the WTOs legal secretariat or by judicial clerks), or the possibility of higher
court review of the facts as well as the law (as is the case with the ad hoc war crimes tribunals and the ICC but not
the ICJ, the trade regime, or ICSID).53
4 The Lawmaking Function

The foregoing functions are incomplete to the extent that a discrete function is to produce lawand not merely as
an adjunct to settling a particular dispute or to legitimize efforts to resolve conflict. As a number of contributions to
this volume suggest, in many cases, the main function of an international adjudication is to render an authoritative
judgment on a disputed point of law and not merely to fill those interstitial legal gaps needed to resolve a
concrete dispute.54
The lawmaking account of what judges and arbitrators generally do begins by acknowledging that todays courts
and arbitrators do not just settle interstate disputes. Interstate dispute settlement does not really describe, for
example, the functions (p. 169) of international criminal courts (which pits a prosecutor, who might be seen as a
representative of the international community, against an individual), regional human rights courts (which consider
whether states have abused individual rights), or ICSID arbitrations (which consider whether a state has abused the
rights of a foreign investor). International adjudication, as much else in international law, no longer involves states
as the only litigants. Rather than modes of interstate conflict resolution, these adjudications, whose rulings are
triggered by non-state actors (namely an independent prosecutor, a human rights claimant, or a foreign investor),
might be more accurately described as applying and necessarily making, respectively, international criminal law,
human rights law, and international investment law.55
In other instances, international adjudication, even when involving states or state entities such as international
organizations, are not seen by the litigants as involving actual disputes. ICJ Advisory Opinions, whether dealing
with the effects of UN sanctions against Namibia, the extent to which legal personality can be attributed to the
UN, the extent to which the UN General Assembly can exercise its power of the purse, the legality of nuclear
weapons or the Israeli Wall, or the effects of a declaration of independence by Kosovo authorities, are not
characterized as concrete disputes, at least not by the entity requesting the opinion nor by the majority of
members of that Court. Indeed, for some ICJ judges, if a request for an advisory opinion is in reality a disguised form
of a dispute between states that is not otherwise subject to the contentious jurisdiction of the court, that is a reason
why that case should not be heard.56 Moreover, even those ICJ advisory opinions that might plausibly be cast as
involving a (disguised) dispute between states, are at least equally directed at providing authoritative (if not
formally binding) interpretations of organizational charters or providing guidance to international civil servants
seeking the same.57 Indeed, these opinions seem most effective when they render authoritative interpretations of
the law (including the UN Charter) helpful to bureaucrats and least successful when they attempt to resolve an
underlying interstate dispute. To view efforts to seek the ICJs advice on the law as principally or solely occasions
for dispute settlement seems disingenuous. But it seems equally disingenuous to describe other instancesfrom
the Avena/La Grande line of contentious ICJ judgments to any of a (p. 170) number of WTO panel and Appellate
Body decisionsas principally or solely about dispute settlement when those bringing such cases appear to be
seeking a thoroughly reasoned (and therefore authoritative) legal rulingand not merely a quiet way to resolve a
discrete dispute.58
At the same time, as the chapters by von Bogdandy and Venzke as well as Besson address in detail, those who
contend that international adjudicators have a lawmaking function face special jurisprudential burdens. As those
authors suggest, judicial gap-filling seems an inescapable by-product of the application of any kind of law (no
matter how precise) to fact. It also seems an inevitable by-product of adjudication because of the communicative
practices of this particular interpretative community, most of whom are under, as von Bogdandy and Venzke
Page 5 of 16
contend, the spell of precedents.
Notably, von Bogdandy and Venzkes explanations for judicial lawmaking do not rely on a rational agent model.
Those who establish international courts and tribunals often do not anticipate that they have delegated the power
to make law or the extent to which they have done so. Like all actors who engage in contracting, states sometimes
fail to anticipate the legal gaps or uncertainties in their agreements or the extent to which their adjudicators will
need to fill them and are surprised when their judges or arbitrators make law.59 At the same time, as Murphys
chapter indicates, there is no scarcity of functionalist explanations for the lawmaking function.60
5 The Governance Function

Adjudicators, including national judges, are sometimes expected to give meaning to, or endorse, public values.
This view of the task of judging, most often propounded by US scholars such as Owen Fiss (describing the function
of decisions by the US Supreme Court such as Brown v. Board of Education)61 or Harold Koh (p. 171) (describing
the function of decisions in, for example, Filartiga v. Pea-Irala),62 challenges the principal/agent account as well
as triadic dispute settlement more generally. It goes beyond the fact-finding and lawmaking/law-ascertainment
functions insofar as it accepts that judges and arbitrators, or some of them, can and do engage in autonomous
normative action while still adhering to the rule of law.63 Since it assumes that adjudicators are entitled (and may
even be under a duty) to consider the policy implications of their rulings, it goes beyond the assumptions of those
who defend interstitial lawmaking.64
The governance function anticipates that judges and arbitrators, at the national and international level, must
generally (or at least sometimes) consider the impact of their rulings on states, persons, or entities not directly
represented in the case before them. This function sees adjudication as a polycentric, not merely triadic,
enterprise.65 Particularly for those who see a trend towards the constitutionalization of international law, the
function of international adjudications is not merely to complete the contracts of states or make vague standards
more precise. Judges are supposed to act as super-legislators engaged in resolving those difficult conflicts
between community values that other international actors and sources of law dare not touch. The contention that
judges should function as supreme guardians of public virtue or general policy-makers, and not passive positivistic
umpires calling legal balls and strikes between litigants, is controversial, even among US Supreme Court
judges.66 But while controversial, there is evidence that the governance function is not a figment of the academic
imagination.
The governance functions polycentricity might help to explain, for example, the many instances of adjudicators
who, while operating within a specific regime, have attempted to de-fragment international law by using, for
example, Art. 31.3.c of the Vienna Convention on the Law of Treaties (VCLT) as a tool of systemic integration.67
While some of these efforts might be explained as routine interpretations (p. 172) of the relevant law consistent
with the dispute settlement function as traditionally construed,68 efforts to go beyond the confines of a specific
regime may be motivated by Lauterpachts injunction to respect the goals of the international community, by
desires to promote certain normative values (such as human rights), by felt needs to propound harmonious law
grounded in respect for the adjudicative rulings made by others, or by socialization pressures prompted by everrising contacts among national and international adjudicators.69 This normative urge to merge, while inconsistently
applied, has surfaced across diverse courts and tribunals. These departures from the ideal type described in
Section 2 lead some to conclude that there is no such thing as a self-contained international regime.70
Like the fact-finding and lawmaking functions, the governance function is sometimes anticipated by those who
establish international courts and tribunals, especially (but not only) by those who establish courts to advance
political integration.71 Consider the numerous functions that have been attributed to international criminal courts,
from the ICTY to the ICC. Those present at the creation of such courts have argued that these bodies are
necessary, not only to convict the guilty and absolve the innocent (including the collective), but also to: (1)
threaten those in positions of power to deter further violence; (2) make atonement possible for perpetrators; (3)
honor the dead; (4) serve the victims of mass atrocity by providing psychological relief, compensation, identifying
remains, and restoring lost property; (5) re-channel the thirst for revenge at the national level where the atrocities
occurred; (6) assist in restoring the rule of law at the national level; (7) affirm the Nuremberg Principles and the
international rule of law; (8) tell the truth of what occurred by providing an accurate historical record; and (9)
72
Page 6 of 16
restore lost civilities in torn societies to achieve national reconciliation.72 These are grandiose goals for
proceedings that might be seen, more simply, as merely efforts to provide fair trials for those charged with very
serious crimes. While we can dismiss all or most of these functions as rhetorical or suggest that they would be
better allocated to (p. 173) non-judicial actors such as truth commissions, it would be a mistake to assume that
these policy goals have not influenced judges on these courts or the expectations of influential stakeholders who
react to their rulings.
There is considerable evidence that those who serve on these tribunals, including its judges, see themselves as
Lauterpacht would have described them as agents of the international community bent on the pursuit of justice
broadly understood. Some of the institutional features of these bodies suggest the same. The Rome Statute for the
ICC, as is well-known, contains numerous provisions for victim-centered justice, as the ICCs prosecutor has
advocated a model of positive complementarity designed to promote the national rule of law, and the judicial
opinions of these tribunals are routinely scrutinized to see whether they advance or retard the attainment of all of
these goals.73 There is no reason to think that international criminal judges have been unresponsive to these goals
in their day-to-day decisions regarding the affirmation of charges to be brought, in determining how to conduct
procedures and accept evidence, their treatment of witnesses and victims, or in their ultimate rulings and
sentencing decisions. On the contrary, there is considerable evidence that despite the nullum crimen principle,
judges on the ICTY and ICTR have engaged in judicial legislation (as with respect to innovative gender crimes)
that respond to these expressive goals and particularly to the need to satisfy the needs of victims.74 There is
also evidence that the ICTY has attempted, at least in its early days when less constrained by completion
pressures, to serve a wider truth-telling function than was strictly necessary to try the particular defendants
before it.75 While it is true that international criminal judges rarely invoke these broad policy goals in their decisions
explicitly, adjudicative silenceas Shapiro would be the first to remind us76 does not disprove the existence of a
function.
The governance function can be particularized in at least two ways: adjudicative governance as directed at
specific institutions and as directed at states. As Murphys chapter indicates, many of the Advisory Opinions issued
by the ICJ can be appreciated as occasions where that court exercised a governance function over the UN. But the
ICJs governance function over the UN has not been limited to its advisory opinions. That courts interim decisions
in the Lockerbie case, for example, while deferential to the Security Council, contained subtle forms of de facto
judicial review.77 Other bodies, such as the ICTY in its jurisdictional decision in Tadi, as well as the European Court
of Justice in Kadi, have engaged in indirect forms of (p. 174) review over the Council.78 These decisions suggest
that judicial contributions to regime governance need not be restricted to a regimes own courts or tribunals.
Other examples of regime-specific governance decisions include WTO panel or Appellate Body decisions, from
those that opined on the legality of the US Trade Act to those concerning the timing of implementation measures in
the protracted Bananas dispute.79 These decisions have been important steps in constructing WTO governance.
International criminal tribunals supply a number of examples of the governance function as applied to states. As
noted, it is widely accepted that one of the key functions of international criminal courts is deterrence. Since many
international crimes involve the actions of states, it is widely assumed that one of the functions of these courts is to
deter governments from committing international crimes as well as to encourage them to take action (at least within
their territory) to prevent non-state actors from committing such crimes. The deterrence function is not just about
deterring individuals. It is about convincing government actors to take affirmative measuressuch as making
international crimes domestic ones, removing amnesty provisions or taking necessary executive action to make
the conviction of these political crimes more likely.80 The deterrence function of international criminal tribunals
also includes deterring states from violating the obligations contained in the Torture Convention, the Genocide
Convention, and the Geneva Conventions. The shadow of international criminal accountability encourages states
to modify their government manuals and disciplinary procedures over local police or national militaries. When an
international criminal court renders a judgment that involves a government actor or a crime that could have been
prevented by state action, that ruling, as von Bogdandy and Venzke contend, is an effort to control and legitimate
public authority.81
Deterring WTO members from engaging in violations of their trade agreements, to cite another example, is often
stated to be a function, perhaps the principal one, of the WTO and its Dispute Settlement Understanding (DSU). For
trade lawyers, that dispute settlement system is most successful when it prevents trade disputes from arising, or, in
Page 7 of 16
the words of Andrew Guzman, when the information provided by dispute settlers deters members from cheating or
engaging in comparable trade practices.82 Indeed, most regard the actual issuance of authorization of trade (p.
175) countermeasures by WTO dispute settlers as a regrettable failure in a system designed to avoid such tit-fortat responses. From this perspective, the WTO regime, especially its adjudicative centerpiece, is all about
exercising trade governance.83 It is also why some describe that regime as constitutional.84
Human rights courts are also seen as instruments for regulating states, that is, for deterring states from engaging in
human rights abuses. Indeed, this may explain why only some of these bodies can be described as victimcentered courts principally designed to order compensation to recompense the victims of abuse.85 As Ebobrahs
contribution to this volume indicates, the principal goals of the Inter-American and European systems for human
rights have been to render factual and legal conclusions that clarify the human rights obligations of their respective
state parties.86 Although these regional human rights systems now may be becoming more sensitive to the plight of
victims, one of their principal functions continues to be to prevent future human rights abuses by mobilizing
shame against states.87
The Global Administrative Law (GAL) project provides a more thorough account of the governance function
exercised by these and other international adjudicative bodies. An extensive GAL literature catalogues and
critiques various contemporary modes of regulating states (not only in the relations between states but within
them). While GAL considers the efforts of transnational networks of government regulators, formal international
organizations, and hybrid public/private bodies, it also includes as part of the governance function the adjudicators
involved.88 To GAL scholars, investor-state arbitrators tasked with settling disputes under investment protection
treaties and providing compensation to foreign investors, are, for example, as engaged in the public regulation of
states as are WTO dispute settlement bodies and human rights courts.89 GALs view of adjudications as polycentric
tools of governance is dramatically at odds with the principal/agent or triadic dispute settlement accounts of
dispute settlement. Their prescriptions (p. 176) for how adjudicators should behave are, accordingly, vastly
different from those suggested by the ideal type described in Section 2 of this chapter.90
6 Conclusions
The question posed in the title of this chapter can be answered in different ways. The determination by a chamber
of the ICC that defendants retain certain rights even when presented by evidence produced by intermediaries,91
for example, might be categorized (1) as settling an interpretative dispute between the prosecutor and the
defense; (2) as assisting in furthering the truth of what actually occurred in a particular case; (3) as providing an
authoritative interpretation of that tribunals rules; or (4) as purporting to guide how future prosecutors need to
behave. That decision can, in short, be explained in terms of the dispute settlement, fact-finding, lawmaking, or
governance functions described in this chapter.
Indeed, when viewed from a sufficient distance, all the functions of adjudicators can be reduced to one: to provide
useful independent information to rational state actors. Consistent with this rational choice account, Andrew
Guzman explains that adjudicative findings of law or fact are essentially disinterested focal points that serve to
guide state behavior and enable common understandings of what occurred.92 Whether or not adjudicators resort
to normative policy judgments, their clarifications of law and fact serve a governance function by reducing
uncertainty within distinct regimes as well as within states.93 On this view, all the functions of international
adjudication point in a single direction. Adjudicative fact-finding and lawmaking serve to promote the settlement of
a dispute, increase the costs of a discrete violation of the law, and, by clarifying the law for other WTO parties
(and/or the GATT secretariat), assists in the governance of the trade regime as well as the regulation of states that
are presumptively deterred from taking certain measures or actions. More simply and concisely, we might see what
international adjudicators do as efforts to stabilize the normative expectations of relevant actors.94
But categorizing the functions of international adjudicators is more than an exercise in semantics. For those
engaged in the day-to-day business of judging, it matters (p. 177) how they see what they do. Adjudicators who
see themselves as either state agents, third parties in a triad or as trustees may follow different scripts in settling
disputes. They may or may not apply the passive virtues, expand or narrow the factual or legal issues raised,
engage in more or less creative interpretations of the relevant sources of law; or consider or ignore broad policy
considerations. Adjudicators also may act differently depending on whether they value (either generally or in a
Page 8 of 16
particular instance) one function over another. The main functions of adjudication, when applied, often conflict.
The fact-finding function, for example, may be at odds with the dispute settlement functionas where a decision
based on impugning a states factual assertions may prove more offensive than a ruling based on the law95 or
where a ruling based on a finding of scientific fact is undermined, after an adjudicative opinion is rendered, by new
scientific information.96 Adjudicators who insist on telling the truth about what occurred when that is inconsistent
with what a state party says or who act as trustees in an institutional setting where they are expected to act as
agents may issue rulings that fail to resolve disputes because they are ignored. Those who prioritize the needs of
transitional justice, historic truth telling, or the needs of victims in judging international crimes may short-change
defendants needs for fair trials.97 A failure to exercise the fact-finding function with sufficient rigor may foster
overly expansive law generation, and so on.98 International adjudicators cannot always pursue or expect to
achieve all the functions expected of them. They have considerable discretion on whether and how to exercise
them.
At the same time, considerable discretion is not carte blanche. As Ginsbergs chapter indicates, adjudicators
operate against a backdrop of extensive and distinct constraints, which change over time along with the goals of
the particular adjudicative scheme.99 The extent to which judges and arbitrators can pursue the main functions of
adjudication varies with the ex ante and ex post institutional constraints within each court or arbitral institution.100
These constraints, as well as their own views of their function, determine how judges and arbitrators exercise their
often-considerable discretion.101
(p. 178) Research Questions

1. Are there adjudicative functions not encompassed by dispute settlement, fact-finding, lawmaking, and
governance that ought to be considered?
2. Are there hierarchies of value or systems of prioritization that would suggest when one of the main
functions should give way to another?
3. How do we measure whether a particular court or tribunal is succeeding in achieving its functions? How do
we measure the effectiveness of international adjudicators?
4. When are analogies between the functions of international adjudicators and national courts appropriate?
Are international adjudicators expected to perform some functions that national judges are not?
Suggested Reading
Alter, K, Agents or Trustees? International Courts in Their Political Context (2008) 14 EJIR 33.
von Bogdandy, A, and Venzke, I, On the Functions of International Courts: An Appraisal in Light of Their
Burgeoning Public Authority Amsterdam Law School Legal Studies Research Paper No. 201269.
Helfer, LR, and Slaughter, A-M, Why States Create International Tribunals: A Response to Professors Posner and
Yoo (2005) 93 Calif. L. Rev. 899.
Lauterpacht, H, The Function of Law in the International Community (first published 1933, Oxford University Press
2011).
Lillich, R, Fact-Finding Before International Tribunals (Ardsley-on-Hudson, NY: Transnational 1992).
Shapiro, M, Courts: A Comparative and Political Analysis (University Of Chicago Press 1981).
Trachtman, J, The Domain of WTO Dispute Resolution (1999) 40 Harv. Intl L. J. 333.
Notes:
(*) Herbert and Rose Rubin Professor of International Law, New York University School of Law. The author gratefully
acknowledges the assistance of the Filomen DAgostino and Max E. Greenberg Research Fund.
(1) See UN Charter Art. 1(1) (affirming as one of the purposes of the UN the adjustment or settlement of
Page 9 of 16
international disputes or situations which might lead to a breach of the peace); Art. 33 (listing judicial settlement
as one of the peaceful means through which interstate disputes ought to be settled); Statute of the Court, Art. 38
(the function of the Court is to decide...disputes as are submitted to it).
(2) See, e.g., Marrakesh Agreement Establishing the World Trade Organization, Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU), Art. 3.7 (The aim of the dispute settlement mechanism is
to secure a positive solution to a dispute).
(3) See, e.g., H Lauterpacht, The Function of Law in the International Community (first published 1933, Oxford
University Press 2011) (defining international judicial settlement including arbitration to be a method of settling
disputes between States by a binding decision based upon rules of law) and JH Jackson, Legal Problems of
International Economic Relations (3rd edn, St. Paul, MN.: West Pub. Co. 1995), 327 (describing the evolution of the
WTO DSU as a turn away from resolving interstate disputes through power politics or diplomacy). See also, in
this handbook, Besson, Ch. 19, at sections 1, 2, and 3.1; Ebobrah, Ch. 11, at Section 3; Murphy, Ch. 9, at Section
1; and Ginsburg, Ch. 22, at Section 1.
(4) See, e.g. in this handbook, von Bogdandy and Venzke, Ch. 23, at Section 2 (noting how judges resort to
timorous fictions to mediate between the positivisitic myth that judges do not make law and the systemic effects
of precedent).
(5) See, in this Handbook, Besson, Ch. 19, at sections 1 and 3.1.
(6) As do, for example, Ginsburg, Ch. 22, at sections 3.1 and 3.2 in this handbook. Both Murphy and Ginsburg
examine the systemic functions of inter-state courts from the perspective of the states that establish them. See
also, in this handbook, Baudenbacher and Clifton, Ch. 12 (examining the political integrative aspirations of those
who establish certain regional courts).
(7) See, e.g., in this handbook, Ebobrah, Ch. 11, at Section 3 (discussing, in addition to the goals of the
stakeholders of human rights tribunals, the broader aspirational functions of those courts both for the national and
international rule of law).
(8) See, e.g., in this handbook, von Bogdandy and Venzke, Ch. 23, at Section 2 (providing a more internal account
of judges communicative practices in terms of their needs to explain their decisions to litigants and others).
(9) Thus, many roles that Ebobrah attributes to human rights courts (such as to prevent relapse by subsequent
governments) to show the world that a nation has nothing to hide, or to satisfy the victims need for justice by
apportioning responsibility for reparation, are distinctive to such bodies, while others, such as to signal respect for
international obligations, to resolve disputes, and to avoid situations that deteriorate into violations of the peace,
are more generalizable.
(10) See, in this handbook, Besson, Ch. 19, at Section 3.
(11) Besson, Ch. 19, at Section 2.
(12) See, e.g., A von Bogdandy and I Venzke, On the Functions of International Courts: An Appraisal in Light of
Their Burgeoning Public Authority, Amsterdam Law School Legal Studies Research Paper No. 2012-69. Compare B
Kingsbury, International courts: uneven judicialization in global order in J Crawford and M Koskenniemi (eds), The
Cambridge Companion to International Law (Cambridge University Press 2012), 203 (describing the same as
settling disputes, making commitments credible, governance, and producing legal knowledge).
(13) See, e.g., A Guzman, The Cost of Credibility: Explaining Resistance to Interstate Dispute Settlement
Mechanisms (2002) 31 J. Leg. Stud. 303 (arguing that dispute resolution clauses in treaties are most likely when
rates of compliance with the treaty are already expected to be high, when the stakes are small, and when the
adjudicator is interpreting norms that both parties are equally likely to violate).
(14) See, e.g., EA Posner and JC Yoo, Judicial Independence in International Tribunals (2005) 93 Calif. L. Rev. 1
(arguing that the only effective international tribunals are those that are dependent, that is, ad hoc tribunals
whose adjudicators are closely controlled by governments). See generally DL Nielson and MJ Tierney, Delegation
to International Organizations: Agency Theory and World Bank Environmental Reform (2003) 57 Intl Org. 241
Page 10 of 16
(applying principal/agency theory to international organizations).
(15) See, e.g., A Perez, The Passive Virtues and the World Court: Pro-Dialogic Abstention by the International
Court of Justice (1997) 18 MJIL 399. See also in this handbook, Ginsburg, Ch. 22, at Section 3.1.
(16) Compare, for example, the Statute of the ICJ, Art. 38, to the WTOs DSU, Art. 3.2 (Recommendations and
rulings of the DSB [dispute settlement body] cannot add to or diminish the rights and obligations provided in the
covered agreements).
(17) The dispute settlement function is therefore viewed as consistent with efforts to encourage the disputing
parties to settle their dispute through less formal methods such as negotiation, mediation, or conciliation. See, e.g.,
UN Charter, Art. 33 and the WTOs DSU, Arts 3.33.7, 4, and 5, as well as provisions requiring negotiation or other
methods of peaceful dispute settlement prior to resorting to arbitration in a number of treaties.
(18) Posner and Yoo, note 14.
(19) See generally, in this handbook, Ginsburg, Ch. 22, at Section 3.
(20) See, e.g., JE Alvarez, The Proposed Independent Oversight Mechanism for the International Criminal Court
UCLA Human Rights & International Criminal Law Online Forum, MaySeptember 2011
<http://iccforum.com/oversight> accessed April 17, 2013 (enumerates the ways the ICCs Assembly of State
Parties continues to exert its influence over that court through financing, enforcement, and supervisory
mechanisms).
(21) See, e.g., United States, Measure Affecting Imports of Woven Wool Shirts and Blouses from India
(WT/DS33/AB/R, April 25, 1997) (applying the principle of judicial economy); ICJ, Military and Paramilitary
Activities in and Against Nicaragua (Nicaragua v. United States) (Declaration of Intervention, ICJ Rep. 215, 1984)
(denying El Salvadors attempt to intervene); Glamis Gold, Ltd. v. United States, ICSID Award (June 8, 2009)
(adopting the narrow views of what constitutes custom urged by the United States as respondent). On the ICJs
refusal to engage in its own fact-finding, see note 49.
(22) See, e.g., von Bogdandy and Venzke, note 4.
(23) See, e.g., JE Alvarez, The Return of the State (2011) 20 MJIL 223 (enumerating the ways that states are
reasserting their voice and power in the international investment regime, including the impact of recent ICSID
annulment committees).
(24) See, e.g., E Gordon, The ICJ: On Its Own in A Nanda and A Mundt (eds), Perspectives on International Law
in an Era of Change (University of Denver, Sturm College of Law 2012) 74.
(25) See, e.g., R StJ Macdonald, The Margin of Appreciation in R St J Macdonald et al. (eds), The European
System for the Protection of Human Rights (Boston, MA: M. Nijhoff 1993) 83.
(26) See LR Helfer and AM Slaughter, Why States Create International Tribunals: A Response to Professors Posner
and Yoo (2005) 93 Calif. L. Rev. 899 (providing an alternative to the principal/agent rationale for the institutional
constraints faced by international adjudicators).
(27) Lauterpacht, note 3. Of course, the views of Lauterpacht, who went on to serve on the ICJ himself, are relevant
precisely because they are representative of a generation of international lawyers who went on to establish the ICJ
and other contemporary courts and tribunals, to serve as lawyers to litigants before these tribunals or to serve as
adjudicators themselves.
(28) As Martti Koskenniemi points out in his introduction to the new edition to Lauterpachts text, for Lauterpacht,
international adjudicators were comparable to Ronald Dworkins Herculean judge. Their impartiality is what
enables legalized dispute settlement to succeed and why states turn to it in the first place. As Koskenniemi points
out, in this conception there is no need for additional principal/agent constraints on the discretion of adjudicators
since the legal rules that they apply are, themselves, sensitive to principles of proportionality, reasonableness, and
other modes of realist adjustment. M Koskenniemi, The Function of Law in the International Community:
Introduction in Lauterpacht, note 3, at xlixliii.
Page 11 of 16
(29) Lauterpacht, note 3.
(30) For more on the distinctions between forms of political dispute settlement and more legalized methods, see
generally, RO Keohane et al., Legalized Dispute Settlement: Interstate and Transnational (2000) 54 Intl Org. 457.
(31) Lauterpacht, note 3, at 11819. See also von Bogdandy and Venzke, note 12, at 19 (enumerating examples of
courts acting as organs of a value-based international community).
(32) See generally, in this handbook, von Bogdandy and Venzke, Ch. 23, Baudenbacher and Clifton, Ch. 12,
Schreuer, Ch. 14, and Murphy, Ch. 9.
(33) M Shapiro, Courts: A Comparative and Political Analysis (University Of Chicago Press 1981) 1.
(34) Shapiro, note 33, at 1; see also J Alvarez, International Organizations as Law-makers (Oxford University
Press 2005) at 5289.
(35) Shapiro, note 33, at 29 (Because no human society has ever sought to set down an absolutely complete and
particularized body of preexisting law designed exactly to meet every potential conflict, judicial discovery must
often of necessity be judicial law making). See also, in this handbook, von Bogdandy and Venzke, Ch. 23, at
Section 4.
(36) M Shapiro, Judges as Liars (1994) 17 Harv. J. Law and Public Policy 155; See, in this handbook, von
Bogdandy and Venzke, Ch. 23, at Section 3.
(37) K Alter, Agents or Trustees? International Courts in Their Political Context (2008) 14 EJIR 33; T Ginsburg,
Bounded Discretion in International Judicial Lawmaking (2005) 45 Virg. J. Intl L. 1. See also KW Abbott and D
Snidal, Why States Act Through Formal International Organizations (1998) 42 J. Conflict Res. 3 (arguing that
states turn to international institutions, including courts, because they need tools for both centralization and
independence); T-H Cheng, When International Law Works (Oxford University Press 2012), at 1245 (discussing
the value of legalism in justifying judicial action).
(38) For an explanation of the appeal of precedent to international adjudicators that is consistent with triadic
dispute settlement, see in this handbook, von Bogdandy and Venzke, Ch. 23, at Section 3.
(39) See generally, JHB Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go? (2001)
95 AJIL 535.
(40) Efforts to promote greater transparency and accountability within ICSID appear to be motivated by legitimacy
concerns. See, e.g., B Kingsbury and S Schill, Investor-State Arbitration as Governance: Fair and Equitable
Treatment, Proportionality and the Emerging Global Administrative Law in El Nuevo derecho administrativo global
en Amrica Latina (Buenos Aires: Rap 2009) at 221.
(41) Compare, in this handbook, Besson, Ch. 19, at Section 2.
(42) See D Palmeter, The WTO Appellate Body Needs Remand Authority (1998) 32 J. World Trade 41.
(43) Note that the dominance of facts in international criminal tribunals relates not only to determinations of the
defendants guilt. Fact-finding is also vital to producing the definitive history of atrocity in a region or country that is
sometimes sought. See Jos E. Alvarez, Rush to Closure: Lessons of the Tadi Judgment (1998) 96 Mich. L. Rev.
2031 (discussing the tensions between such goals and the need to focus attention only on the factual allegations
made against the defendant).
(44) See, e.g. RE Bilder, The Fact/Law distinction in International Adjudication in RB Lillich (ed.), Fact-Finding
Before International Tribunals (Ardsley-on-Hudson, NY: Transnational 1992) 95.
(45) See, e.g., DV Sandifer, Evidence Before International Tribunals (1975) in Lillich, note 44.
(46) This is an example of adjudicative lawmaking that results from the adjudicative process itself. See Section 4 of
this chapter.
Page 12 of 16
(47) See, e.g., K Highet, Evidence, The Chamber and the ELSI Case in Lillich, note 44, at 33; K Highet, Evidence,
the Court, and the Nicaragua Case (1987) 81 AJIL 1.
(48) They are part of the common rules of international procedure on which some international courts and
tribunals rely.
(49) See, e.g., TM Franck, Fact-Finding in the ICJ in Lillich, note 44, at 21 (criticizing the ICJs avoidance of the
facts and reliance on a paper trial in Temple of Preach Vihear, the Nicaragua Case, and its Advisory Opinion in
Western Sahara). See also JE Alvarez, Are International Judges Afraid of Science? A Comment on Mbengue
(2011) 34 Loy. L.A. Intl & Comp. L. Rev. 81, 83.
(50) Compare MM Mbengue, International Courts and Tribunals as Fact-Finders: The Case of Scientific Fact-finding
in International Adjudication (2011) 34 Loy. L.A. Intl & Comp. L. Rev. 53 (making this claim) with Alvarez, note 49
(questioning Mbengues premises and conclusions).
(51) See, e.g., Bilder, note 44, at 98 (but also suggesting that in some cases their fact-finding difficulties are selfimposed insofar as they see decision-making based on analysis of legal principle as more prestigious or
weighty); NA Combs, Fact-Finding Without Facts (Cambridge University Press 2010) 3509.
(52) Combs, note 51 (discussing the many subjective and probabilistic assessments made by criminal judges,
including the degree of certainty needed to make a determination that someone is guilty beyond a reasonable
doubt).
(53) See generally, Helfer and Slaughter, note 26 (surveying the impact of diverse institutional constraints). Of
course, the fact-finding approach of even established tribunals may change over time in response to internal or
external pressures. See generally, M Langer, Managerial Judging Goes International, But Its Promise Remains
Unfulfilled: An Empirical Assessment of the ICTY Reforms (2011) 36 Yale J. Intl L. 241.
(54) See generally, in this handbook, von Bogdandy and Venzke, Ch. 23; and Besson, Ch. 19.
(55) See, e.g., in this handbook, Murphy, Ch. 9, Ebobrah, Ch. 11, and Schreuer Ch. 14; see more generally, P
Stephan, Privatizing International Law (2011) 97 Virg. L. Rev. 1573 (seeing such non-state involvement as part of
a larger trend toward private law-makers and enforcers).
(56) But see the dissenting opinion of Judge Oda, Legality of the Use by a State of Nuclear Weapons in Armed
Conflict (Request for Advisory Opinion by the World Health Organization) (ICJ Rep., 1996) (WHO Opinion)
(suggesting that the advisory jurisdiction of the court should be used only in case of conflict or dispute).
(57) This is implicit in the pre-conditions for permissible advisory opinions suggested by the court, e.g. WHO
Opinion, note 56 (finding that the advisory jurisdiction of the court is triggered when the agency requesting the
opinion is duly authorized under the UN Charter to request such an opinion, where the opinion requested is a legal
question, and where the question is one arising within the scope of the activities of the requesting agency).
(58) See, in this handbook, Besson, Ch. 19, at Section 2 (describing the review function), Baudenbacher and
Clifton, Ch. 12, at Section 2.2.1 (describing how regional courts establish sui generis regimes) and Murphy, Ch. 9,
at Section 4.3.2 (describing the gap-filling function of ICJ advisory opinions). See more generally, AT Guzman, How
International Law Works: A Rational Choice Theory (Oxford University Press 2008) 4954 (discussing the general
value of judicially determined focal points to guide the behavior of states).
(59) Compare Art. 3.2 of the WTOs DSU (barring rulings by the DSB that add to or diminish rights in the covered
agreements).
(60) See, in this handbook, Murphy, Ch. 9, at Section 4.3. See also J Trachtman, The Domain of WTO Dispute
Resolution (1999) 40 Harv. Intl L. J. 333 (discussing how the negotiators of the WTO delegated to WTO
adjudicators the task of completing their treaty contracts, thereby avoiding the costs of time-consuming ex ante
treaty negotiations).
(61) OM Fiss, Foreword: The Forms of Justice (1979) 93(1) Harv. L. Rev. 18.
Page 13 of 16
(62) HH Koh, Why do Nations Obey International Law (1997) 106 Yale L.J. 2599.
(63) The governance function does not assume that judges or arbitrators can ignore legal constraints on their
choice of law or jurisdiction, but it assumes that in applying those legal constraints adjudicators consider the policy
or governance implications of distinct interpretations of the law. See, e.g., Cheng, note 37, at 12431 (arguing that
this is demanded by specific morality and suggesting that judges may need to suggest changes to unjust laws).
(64) While this conception of the task of judging is most often propounded with respect to national judges operating
within a constitutional scheme, Lauterpacht hinted at the governance function back in 1933, when he urged judges
to respond to the needs of the international community and not merely the parties before them. See note 3.
(65) See Alvarez, note 34, at 5356.
(66) Compare J Roberts, Opening Statement, Senate Judiciary Committee (2005) (suggesting that his job as Chief
Justice of the US Supreme Court would be to call balls and strikes and not to pitch or bat)
<http://articles.cnn.com/2005-09-12/politics/roberts.statement_1_judicial-role-judges-judicial- oath?
_s=PM:POLITICS> accessed April 17, 2013.
(67) See, e.g., V Gowlland-Debbas, Issues Arising from the Interplay Between Different Areas of International Law
(2010) 63 Current Legal Problems 597.
(68) See D Regan, International Adjudication: A response to PaulusCourts, Custom, Treaties, Regimes, and the
WTO in S Besson and J Tasioulas, The Philosophy of International Law (Oxford University Press 2010) (suggesting
that the relevant WTO agreements themselves enable such cross-references).
(69) For examples, see, in this handbook, Ebobrah, Ch. 11, at Section 4.4 and Baudenbacher and Clifton, Ch. 12, at
Section 2.2.2. See, more generally, Gowlland-Debbas, note 67; A Paulus, International Adjudication in Besson
and Tasioulas, note 68; RG Teitel, Humanitys Law (Oxford University Press 2011).
(70) See, e.g., B Simma and D Pulkowski, Of Planets and the Universe: Self-Contained Regimes in International
Law (2006) EJIL 17. But see Regan, note 68, at 232 (defending self-contained regimes).
(71) See, in this handbook, Baudenbacher and Clifton, Ch. 12, at Section 2.
(72) Alvarez, note 43, at 20312. Many of these goals suggest an expressive theory of trials in which these are
used to defend the rule of law over politics, particularly in pursuit of achieving transitional justice. See, e.g., D
Luban, Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law in Besson
and Tasioulas, note 68, at 574777.
(73) See, e.g., TM Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and
Restorative Justice (2011) 47 Stan. J. Intl L. 279.
(74) See generally, T Meron, The Humanization of Humanitarian Law (2000) 94 AJIL 239; Teitel, note 69, at 73
104.
(75) See, e.g., Alvarez, note 43, at 20446.
(76) See Shapiro, note 36.
(77) See, e.g. T Franck, The Powers of Appreciation: Who Is the Ultimate Guardian of UN Legality? (1992) 86
AJIL 519; JE Alvarez, Judging the Security Council 90 AJIL 1.
(78) See, e.g., von Bogdandy and Venzke, note 12, (discussing these as weak systems of horizontal control and
legitimation of authority).
(79) United States, Trade Act of 1974, Sections 30110; United States, Import Measures on Certain Products from
the European Communities, WT/DS165/AB/R (2000).
(80) On this view, one of the functions of the ICC is to promote or encourage parties to the Rome Statute to reform
their laws and procedures to enable them to exercise the duties suggested by the complementarity regime.
Page 14 of 16
(81) von Bogdandy and Venzke, note 12.
(82) Guzman, note 58, at 524. A complementary perspective on how trade governance works is provided by
those who focus on its effects within states. On this view, the shadow of WTO dispute settlement enables
government elites to blame the WTOor its dispute settlersfor their inability to legislate the trade protectionist
measures that may be sought by certain interest groups within the state. See ML Movsesian, The WTO
Constitution (2000) 114 Harv. L. Rev. 511.
(83) See generally, R Stewart and MR Sanchez-Badin, The World Trade Organization and Global Administrative
Law in C Joerges and EU Petersmann, Constitutionalism, Multilevel Trade Governance and International
Economic Law (Oxford University Press 2011), at 457, 467 (discussing how the WTO dispute settlement system has
assumed a regulatory and even an incipient administrative character).
(84) Movsesian, note 82.
(85) See, in this handbook, Ebobrah, Ch. 11, at Section 3. See also, Antkowiak, note 73.
(86) See, in this handbook, Ebobrah, Ch. 11, at Section 3.
(87) See also von Bogdandy and Venzke, note 12 (discussing the vertical governance function of both human
rights courts and WTO dispute settlement bodies).
(88) See, e.g., Stewart and Sanchez-Badin, note 83; Kingsbury and Schill, note 40.
(89) See SW Schill, Enhancing International Investment Laws Legitimacy: Conceptual and Methodological
Foundations of a New Public Law Approach (2011) 52 Virg. J. Intl L. 57.
(90) Thus, Kingsbury and Schill argue that investor-state arbitrators must themselves respect the norms of
transparency, participation, and thorough reason-giving that rule of law states require of any other regulator of
public action. Kingsbury and Schill, note 40, at 27689.
(91) Situation in the Democratic Republic of the Congo, Redacted Decision on Intermediaries, Trial Chamber I, ICC01/04-01/06, 31 May 2010.
(92) Guzman, note 58, at 51.
(93) Guzman, note 58, at 512.
(94) Von Bogdandy and Venzke, note 12.
(95) See, e.g., Bilder, note 44, at 98.
(96) Alvarez, note 49, at 945 (discussing why, in the Methanex ICSID ruling, it was important for that tribunal to
answer a legal and not a purely factual question).
(97) See, e.g., RB Birn, Fifty Years After: A Critical Look at the Eichman Trial (2011) 44 Case Western Reserve J.
Intl L. 443; C Van den Wyngaet, Victims Before International Criminal Courts: Some Views and Concerns of an ICC
Trial Judge (2011) 44 Case Western Reserve J. Int L. 475, 4878.
(98) See, e.g., Franck, note 49, at 31.
(99) See, e.g., Y Shany, Assessing the Effectiveness of International Courts: A Goal-Based Approach (2012) 106
AJIL 225.
(100) See, in this handbook, Ginsburg, Ch. 22, at Section 3. See also Helfer and Slaughter, note 26.
(101) See, e.g., Helfer and Slaughter, note 26, at 955 (concluding that judges and arbitrators are not lone rangers
untouched by structural, political, and discursive constraints).
Jos E. Alvarez
Page 15 of 16
Jos E. Alvarez is the Herbert and Rose Rubin Professor of International Law at New York University Law School where he directs
the graduate program in International Legal Studies. Previously he was the Hamilton Fish Professor of International Law and
Diplomacy and the executive director of the Center on Global Legal Problems at Columbia Law School. He has also taught at the
law schools at the University of Michigan and George Washington University. He is a past president of the American Society of
International Law (ASIL) and served as an advisor to the first prosecutor of the International Criminal Court. He is co-editor in chief
of the American Journal of International Law.
Access is brought to you by London School of Economics and Political Science
Page 16 of 16

José Alvarez Functions of International Courts

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

José Alvarez Functions of International Courts

Transféré par

Droits d'auteur :

Formats disponibles

What are International Judges for?

The Main Functions of International Adjudication

Oxford Handbooks Online

Subject: Law, International Law

Abstract and Keywords

(p. 159) 1 Introduction

(p. 161) 2 The Complex Dispute Settlement Function

3 The Fact-Finding Function

4 The Lawmaking Function

5 The Governance Function

(p. 178) Research Questions

Access is brought to you by London School of Economics and Political Science

Vous aimerez peut-être aussi