Mirroring Politics In International Courts

• In Event: The Legal Face of International Collaboration

Abstract

How can international institutions be designed so as to combine effective constraints on states’ behavior with insurance mechanisms against the political risk that comes with delegation of power? International treaties and institutions may help states make commitments and coordinate action in mutually beneficial ways, but they are commonly negotiated under uncertainty and their effects are difficult to predict.

We examine how states design international institutions in order to address the demand for effectiveness and responsiveness to political concerns. We suggest that they do so by organizing the structure and procedure of the agent ex ante, so as to provide for the political
preferences and policy conflicts of states to be mirrored in its decision-making processes. Our
argument is inspired by research on delegation by legislatures to bureaucratic agencies, where the problem has been addressed by creating bureaucratic structures that reproduces the preferences and policy conflicts of the different interested parties. The trade-off between effectiveness and insurance against political risk does not go away as a result of this approach to institutional design; in fact, mirroring implies that the collective action problem that the agency was created to solve is partly implanted into its organization and day-to-day workings. But the resulting arrangement may provide a reasonably efficient solution to the delegation problem.

We take this insight to the realm of international courts, which is a class of institutions that has become increasingly important in international relations. Following in the tradition of the rational design of international institutions approach, we focus on how the trade-off between effective implementation of treaties and the need for flexibility and political responsiveness is balanced in the structure and rules of procedure of international courts. Our key claim is that mirroring may be read into the design of international courts and that it is reflected in the internal workings and outcomes of these institutions.

Our argument is outlined in the context of the European Union, which holds one of the most powerful and debated international courts, the Court of Justice of the EU (CJEU). We show that the institutional design of the CJEU is strongly characterized by the efforts of EU member states to seek insurance against political risk by using mirroring techniques. As a consequence, the Court is best understood as a micro-cosmos of the EU itself.

We subsequently test an empirical implication of mirroring, namely that cases that would be relatively difficult to solve at the political level will also be relatively difficult to solve in the judicial process. Our empirical analysis relies on generalized survival models based on all the 11000 judgments rendered by the CJEU between 1952 and 2017. We show that increased divisions among the judges, in terms of the political background of the appointing governments, significantly increases the time it takes to produce a judgement. Prolonged duration of the process—meaning ongoing legal uncertainty and justice delayed—is an unwelcomed consequence of the political heterogeneity that has been institutionalized into the organization. Excessive duration has long plagued the CJEU and raised much criticism, potentially affecting the legitimacy of the Court. Our empirical findings thus illustrate both the effect of mirroring and the inescapable trade-off with regards to institutional design; a price that states pay for insurance against political risk is a somewhat less effective judicial agent. Our study contributes to the research on delegation problems and international
institutions and to ongoing debates regarding international courts and tribunals.

Author

• Daniel Naurin, Oslo University