Friday, March 26, 2004

So this whatever-it-is paper I'm working on is driving me nuts, but here's the breakdown, for all you students of international law. For those of you from the ASIL list who have stopped by to take a look, I am very grateful for any guidance you can give me.

I am going to attempt to argue that should international regional criminal courts come into being, they should be the creation of the Security Council, an international institution, rather than a supranational creation, the result of several countries getting together and doing something. The intergovernmentalist-neofunctionalist debate is more of a side topic than I thought and will have to be dealt with in the introductory section and will be used as a Now that I have decided what this mishagas is about, I've got to rewrite the whole thing, so it might be published around 2010, perhaps slightly before then. Which means I should write it instead of talking to you, my non-existent audience.

The idea is this: Europe has, far more than any continent or community of states, tried to form regional organizations to perform certain actions. Analysis of how these institutions come into being has evolved to engage a more and more comprehensive picture of how and why states join these organizations. The functionalists had a basic explanation; experts unite. Nations joined these groups because they thought that certain problems involving regulation and adjudication could better be solved by experts, an supranational technocracy. Neofunctionalists took issue with this explanation, more or less because it was incomplete; neofunctionalism introduced a political element, arguing that it took more than an association of elite intellectuals to move national governments; it took a measure of political steamrolling. The experts would devise a solution politically palatable to as many member states as possible. These states would sign on. This would create political pressures for the others to join. The key is that these institutions are not as pure as the functionalist analysis holds; politics play a significant, even paramount role.

Neofunctionalists argue that politics played a role in the creation of these institutions. Intergovernmentalists take a still more realist view, arguing that the actions and legitimacy of these institutions was premised on political considerations. The intergovernmentalist critique has two prongs. The first is that judges in supranational institutions take political considerations into account when making decisions, and by that we mean that they take into account the importance of preserving their own political autonomy. The second part of this analysis focuses on how countries treat decisions of these courts. Intergovernmentalists argue that countries with sufficient power can disregard these decisions or evade them. And judges take this into account. It is thus not surprising that "neo-rationalism" is one synonym of intergovernmentalism.

The intergovernmental critique makes the most sense to me. On a global level, countries will disregard the directives and decisions of international institutions if they can. The most prominent example of this is probably the US's ignoring the decision of the International Court of Justice in the Nicaragua case. There are examples in the literature of the larger European countries like Germany and France evading or disregarding the decision of the EU courts when they felt it necessary. This doesn't mean international institutions are useless; the ones in Europe are quite effective and work well all the time.

I believe, however, that regional criminal courts raise different questions, particularly if regional criminal courts are to become a system internationally. Regional organizations to this point have been either economic or political organizations. the European Court of Justice and other regional courts try human rights questions. Regional criminal courts are different. They would entail much steeper sovereignty costs to the countries involved. Unlike economic policy, which is more and more globalized, criminal jurisprudence is considered a core function of the state and thus a core element of sovereignty. These increased sovereignty costs would be especially acute to regional powers. By regional powers I have in mind country-region relationships like Russia-CIS, Nigeria-ECOWAS/AU, United States-OAS, China-Asia. There is likely no comprehensive way to overcome these power imbalances, which are like those that exist in other regional relationships but magnified, so the challenge for scholars and theorists is to find modes of creating institutions that minimize these imbalances as much as possible.

There are essentially two ways an international institution like a regional criminal court can be created. The first way is supranational. Supranational means that the countries in a region get together and form the institution. The International Criminal Court is actually a supranational institution despite the presence of the word "international" in its name. It was the product of several countries coming together, negotiating an agreement, the Rome Treaty. The second way is international. My definition of international in this context is a top-down process, with the court being created by the United Nations and more specifically the United Nations Security Council. The International Criminal Tribunals for Yugoslavia and Rwanda are international creations, created by Security Council resolution acting on recommendations of the Secretary-General and previous Security Council resolutions, and drawing upon the expertise of the International Law Commission at the United Nations. Because of the high stakes involved, the sovereignty costs entailed, and the unique need for consistency and legitimacy in the international criminal context, I believe that any court that tries international criminal cases must be an international, rather than supranational, institution to be viable. Though not perfect, courts created at the international level are more likely to minimize the power imbalances that would be magnified in a regional arrangement.

They are likely to do so for a couple of reasons. The first is that actions of international institutions, particularly the Security Council, carry a built-in legitimacy because the Security Council is the premiere international institution in the world. THis has been demonstrated in the international respect that has been given to the ICTY and ICTR. The second reason is that the sovereignty costs to a member state will be substantially less when the institution is created by the world rather than through supranational agreement. The international institutions are forced to consider the tough political questions of constructing the court and will, because the stage is international and the acting body has some legitimacy, be more likely to reassure regional hegemons and if necessary, bring pressure to bear upon them.

Criminal courts are different from other regional courts in that while there is room for some tailoring and variation in economics and politics, criminal matters demand consistency to be fair. If regional criminal courts are created by supranational agreement, the chances for maintaining consistency will be slim. There is a great variety of viewpoints regarding criminal law in different regions of the world, and this necessitates the need for the use of precedent and the need for some central body to act a supreme court. The ICTY more or less has fallen into this role; its appeals chamber serves both it and the ICTR. International criminal courts also have the benefit of better ensuring the evolution of an international collection of jurists to staff these courts.

This is admittedly not a perfect case by any means. But if we accept the assumption that regional criminal courts are a good idea, I think the international solution represents the best chance for creating viable courts that ensure the responsible evolution of international criminal law precedents and jurisprudence.

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