Assessing the Effectiveness of International Courts: Can the Unquantifiable Be Quantified?
49 Pages Posted: 2 Sep 2010
Date Written: September 1, 2010
During the last twenty years we have experienced a sharp rise in the number of international courts and tribunals and a correlative expansion of their jurisdictions. This increase in power invites posing some difficult questions concerning the performance of international courts: Are they effective tools for international governance? Do they in fact fulfill the expectations that led to their creation? And why do some courts appear to be more effective than others? Etc...
A growing body of legal literature has turned its attention to such questions of effectiveness in recent years. Such literature contains many important insights as to the factors which could explain increased or decreased court effectiveness. Nevertheless, the 'Achilles heel' of most publications in the field is the crude and/or intuitive definitions of "effectiveness" that they employ, which often equate effectiveness with compliance. The lack of a clear definition of effectiveness is sometimes further compounded by general assumptions about the role of international courts in international life, which seem to transpose the role that courts play in national legal systems into the international realm.
At the same time, the social sciences literature has long afforded considerable attention to methodological issues relating to the assessment of organizational effectiveness in general, and public organizational effectiveness in particular. This literature appears to provide a number of conceptual frameworks and empirical indicators that could be alternatively applied towards assessing the effectiveness of international courts and tribunals.
The proposed article surveys some key notions used in social sciences literature relating to the methodology for measuring the effectiveness of public organizations and discusses their possible application to international courts. In Part One, I will discuss the notion of "organizational effectiveness" and explain the choice of a goal-based definition of effectiveness as the most suitable approach for evaluating the performance of international courts. I then survey a number of ways to classify organizational goals and illustrate some of the difficulties and ambiguities that measuring effectiveness on the basis of goal-attainment may nonetheless entail. In Part Two, I shall introduce some key methodological moves used by the social sciences literature in order to measure institutional effectiveness after the goals of the organization have been identified. Such moves include the fleshing out of different operational categories relating to the evaluated organization's structure, process and outcome. In Part Three, I will discuss how the methods of analysis developed in the social sciences literature could be applied to study of international courts, given the unique attributes and context for their operation, and suggest some elements that should be integrated in future research projects seeking to develop a suitable research methodology.
To be clear, my purpose in the article is not to offer any conclusions as to whether international courts in general, or any specific international court in particular, are "effective". My main interest is, instead, to introduce a research agenda that could advance a sophisticated and inter-disciplinary approach towards addressing the question of international court effectiveness.
Keywords: International Law System, National Law System, ILF, Effectiveness of International Courts, International Jurisdiction, Public Organizations, Organizational Effectiveness, Social Sciences Analysis
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By Yuval Shany
By Yuval Shany