PluriCourts at 10 - Some Final Reflections

Introduction

PluriCourts started as a Centre of Excellence funded by the Norwegian Research Council in 2013, sparked by some scattered concerns about the increase of international courts. The end of the Cold War had fueled hopes for a more rules-based international order, more international rule of law.

One expression of such optimism was that states agreed to several specialized international courts and tribunals (ICs). The ICs covered more topics traditionally within the domain of state sovereignty - not only human rights and criminal law, but also restrictions on domestic regulations in trade and investment. The ICs’ judgments had effects on the distribution of power and political and economic resources – both among states, and domestically among different groups within society.

At the same time, the new ICs enjoyed new forms of independence from the states: States consenting to a treaty would often be required to submit to the relevant court, and some of these courts could be used by no-state actors, such as individuals and investors – and in international criminal courts cases may be initiated by the prosecutor.

The increased international and domestic empowerment of ICs led to public concerns about their legitimacy, i.e. the extent to which their exercise of power is justified.

PluriCourts was led by Andreas Føllesdal and Geir Ulfstein, with selected ‘coordinators’ or research directors, and with the participation of a host of international researchers. The aim of PluriCourts was to shed critical light both on the ICs and on the criticisms raised against them:

• Do the ICs fulfil the shared objectives as the states intended?
• Are the concerns with ICs factually correct?
• And are some of the criticisms of ICs justifiable?

Over the 10 years this research agenda deepened and changed. Let me focus on two phases: the coming of age of ICs, and the current backlash.

The multidisciplinary, international setting of PluriCourts

In order to examine the legitimacy of ICs, PluriCourts has pursued two strategies: multidisciplinary and international cooperation.

PluriCourts has insisted that multiple disciplines must work side by side for mutual benefit to address the legitimacy of ICs: legal analysis, political science (empirical aspects) and philosophy (normative aspects). Several note the challenges to communicate and learn across methodologies, vocabularies, styles of argument, and so forth, between disciplines. However, we would not have been able to address the relevant issues without a multidisciplinary approach. Most participants agree that they have benefited from mutual learning.

And PluriCourts has had an international approach from the planning stages. From the early drafts of our proposal for PluriCourts until today we have gathered global experts in the three disciplines to secure the best academic expertise and the experiences with different ICs.

At the same time PluriCourts has addressed uniquely national concerns. There is no fundamental conflict between international orientation and national contributions.

The legitimacy of ICs

The many accusations of legitimacy deficits of ICs have been bewildering and apparently haphazard. Indeed, the criticisms seemed so scattered that some observers suspected that ‘illegitimacy’ is just a complex way to say ‘we don’t like it’. But we have maintained that some concerns merit public attention.

PluriCourts has contributed some frames for assessment of such legitimacy criticisms. We have found it useful to distinguish between source legitimacy, procedural or process legitimacy and, finally, result legitimacy. The source legitimacy of ICs largely flows from the consent of states, and this consent also establishes legal limits to the authority. The procedural or process legitimacy involves design of ICs and their procedures, encompassing their composition, access by states and non-state actors, assessment of facts, transparency, etc. Finally, result legitimacy includes the judgments, states’ compliance, as well as broader impact on the ground. These results affect to what extent ICs fulfil their function(s) – and indeed whether states’ objectives of the overall regime are appropriate. In addressing the result legitimacy, we found it helpful to distinguish criticisms addressing ICs’ performance at the micro level (the relevant dispute), the meso level (the specialized regime) and the macro level (the international rule of law). 

What standards of legitimacy are appropriate? PluriCourts scholars have assessed critically several standards of legitimacy familiar from constitutional theory and political philosophy:

• The rule of law is a central standard. ICs are both subject to the rule of law in their interpretations and providers of the rule of law in the international society, through their judgments.
• ICs must be both independent and accountable. Direct or indirect democratic accountability seems neither feasible nor desirable. But a host of other formal and informal accountability mechanisms are available to states and other actors to control ICs.
• ICs serve particular roles within a complex multilevel system of governance. For instance, since there is no unified international legislator, there may be more need for judicial law-making – but only within limits, since there is no effective international legislator who may amend such law-making. Among the central challenges is how to assess and delineate the authority of ICs in the international institutional architecture, but also between ICs and domestic organs.

1 Coming of Age

In the first phase of PluriCourts, we witnessed the ‘coming of age’ of the ICs. The increased number of ICs that have reached a somewhat settled state allow researchers to draw more robust conclusions on the basis of comparative studies. PluriCourts researchers have contributed in several ways. They include:

 a) The design and composition of ICs

• ICs shall be independent and are exercising increasing power: is there an accountability deficit? However, there are so many ways to control ICs that we should perhaps be more concerned about how to secure the independence of ICs than their accountability. Accountability mechanisms like the International Criminal Court (ICC) Assembly of States Parties may serve important functions, such as election of judges and other forms of accountability, but may also abuse their functions by interfering in the judicial independence.
• The composition of ICs matters. Since judges from developing states have come into the majority on the ICJ, there has been a perception of less division between North and South on the bench. However, the Marshall Islands case (2016) provides a recent example of a split along political lines only determined by the president’s casting vote. Most of the minority judges came from developing countries. In the Qatar v United Arab Emirates on racial discrimination based on the CERD Conventions (2021), it is notable that among the six dissenting Judges, five came from former colonies, whereas the sixth was Japanese. PluriCourts has addressed the lack of diversity on the bench, including the underrepresentation of women. We don’t have a quick fix, but interesting procedures can be found in the ICC, the CJEU and the ECtHR.
• A distinction should be made between permanent courts and arbitration tribunals. Investment arbitration panels are dominated by a group of ‘powerbrokers’ and is characterized by high levels of “double-hatting”, where the same arbitrators have different and possibly conflicting roles.
• Finally, we have highlighted the role of the ‘unseen actors’. The capacity and the professionalism of the secretariat of ICs may increase independence, but may also raise issues about legitimacy.
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  • b) Judicial behaviour - The law and politics of ICs

  • A fundamental basis for ICs’ legitimacy is that their decisions are based on a loyal interpretation of international law. PluriCourts has cooperated with the International Law Association’s Study Group on the interpretation of treaties, concluding that different ICs increasingly apply the principles of interpretation acknowledged in the Vienna Convention on the Law of Treaties. However, these principles allow significant discretion in ICs’ reasoning and the outcome. ICs may also anticipate the reactions of their political and social interlocutors to their judgments and take these into account when adjudicating and setting precedent in salient cases. For instance, colleagues have discovered that

• Unanimous decisions seem to induce more compliance by states – at least for two human rights courts;
• The President of the CJEU builds the Court’s legitimacy by strategically allocating cases to select judges;
• Investment treaty arbitrators have adapted poorly to challenges such as increasing social and economic inequality, economic crises and environmental deterioration. They are responsive to criticism, but much less so than in international trade dispute settlement. These features may explain why this sector faces much criticism – and why some actors call for a new investment court. But if such a new court is in place, colleagues suspect that it may induce investors to seek other modes of dispute settlement than treaty-based, i.e. contract- and legislation-based. These findings illustrate that perceptions of comparative advantages among key users of dispute settlement mechanisms are essential;
• ICs increasingly apply deference to domestic decision-making by limiting their intensity – or standards – of review of such decisions. The ECtHR introduced its margin of appreciation already in the 1970s, when the Court started acting comparably to a domestic constitutional court and thereby represented more wide-reaching intrusions in domestic law. Deference is increasingly also used by other ICs, including the ICJ, the WTO Appellate Body and investment tribunals – arguably to counteract increasing interference in domestic affairs.

  c) Impact/Consequences on the world

    Among the broader impact of the ICs, here are two:

   Fragmentation

Among the fears that may have fueled concern about ICs is that they contribute to fragmented international law, reducing predictability and fostering forum shopping. PluriCourts and others have found that the earlier fears of the negative effects of fragmentation between different ICs may be overstated. Generally, it seems that ICs are able to deal with the challenges represented by fragmentation. Instead, we see an interesting variety of ‘cross-fertilization’ among ICs, litigants, counsel and international organizations.

   Strategic litigation

ICs are not only used to resolve legal disputes between two contesting parties. PluriCourts scholars have studied how various actors use ICs for strategic litigation. This includes:

• The ‘chilling effects’ of investment cases;
• How legal mobilization and judicial decision-making interact at the CJEU; and
• The global ‘lawfare’ concerning sexual and reproductive rights.

This demonstrates the political use and functions of ICs.

     d) Alternatives to IC

PluriCourts has not been set up to promote ICs. Other, non-judicial bodies may be better, or may be all that states will agree to.

For some global challenges such as climate change, many actors exploit existing domestic and international courts. And alternatives to ICs emerge, especially non-compliance procedures. Either as second-best, or appropriate for the tasks at hand. Among their benefits are that they are multinational in nature and have several means at their disposals, including more facilitative approaches to violations of international obligations.

2. Backlash

In more recent years PluriCourts has studied incidents of backlash against international cooperation in general. This made it ever more appropriate to explore what aspects of the critiques are justified or unjustified – again raising questions of legitimacy.

Shifts in geopolitics challenge the very goals of rule based international relations and multilateral agreements. Second, the growing number of populist movement and authoritarian governments prefer national, rather than international solutions. Domestic authorities have also discovered that ICs constrain their policy domain in unforeseen ways. Finally, the practice of ICs shows that there are several aspects of their governance and function that can be improved. However, such backlash and resistance is not a general trend, and it is not entirely new.

Adaptation

It should be noted that ICs have been remarkably resilient and adaptive against critique/backlash. They have adopted as a result of states' formal amendments as well as their own changes of their practice. Some ICs – as already mentioned – also develop more sophisticated mechanisms of deference to domestic authorities, and dialogues with them.

New calls for the services of ICs

At the same time there are signs of renewed support for ICs: 

• Even though the WTO Appellate Body does not function due to procedural rules on nomination and election and the objection of one powerful state, the USA, other states have established an alternative appellate procedure, i.e. the Multi-Party Interim Appeal Arbitration Arrangement (MPIA).
• The ICC is no longer only criticized, but has received renewed attention in light of Russia’s invasion of Ukraine.
• And several actors have called for new ICs, ranging from a special court on aggression on the Russian invasion, to the establishment of an investment court under UNCITRAL.

3. What is next? New and remaining topics

Today, PluriCourts is history. So, what happens after PluriCourts is finished?

We have solid multidisciplinary evidence about at least three conclusions:

• Our world will continue to face some opportunities and some horrors that will require joint action. They may range from the future of international law and ICs under new geopolitical pressures, to the impact of artificial intelligence.
• At least some of the actors will maintain that ICs can be part of the solutions at least some of the time so that some of our existing ICs will continue to exist, and to adapt.
• We maintain that research on these ICs and their legitimacy will and should continue.