Thursday, February 3, 2011

Kingsbury on International Courts: Uneven Judicialization in Global Order

International Courts: Uneven Judicialization in Global Order by Benedict Kingsbury, New York University School of Law, appears in the CAMBRIDGE COMPANION TO INTERNATIONAL LAW, J. Crawford and M. Koskenniemi, eds., 2011.  Here's the abstract:
‘Law without courts’ seemed to Hugo Grotius an entirely coherent approach to the juridification of international relations. The first edition of his Law of War and Peace (1625) reflects an intense commitment to framing claims and rules for conduct outside the state in terms of legal rights and duties, but not to judicialization, even though arbitration between sovereigns was addressed in earlier works he had read, such as Alberico Gentili’s Law of War (1598). Yet in modern times international judicialization – the creation and use of international courts and tribunals – has been not only a significant component of liberal approaches to international order, but for some thinkers an indispensable concomitant of juridification.

Section I of this chapter provides an overview of the waves, and accretion, in the formation of what are now ten basic types of international courts. Section II offers some balance to the tendencies (implicit in the approach taken in Section I) to acclaim each flourishing legal institution as an achievement and to study only what exists, by considering the marked unevenness in the issues, and in the ranges of states, currently subject to juridification through international courts and tribunals. Section III addresses the question whether the density and importance of the judicially-focused juridification that now exists has implications for politics, law, and justice that are truly significant and qualitatively different from what has gone before. This is explored by examining some of the main roles and functions of international courts, considered not simply as a menu but as a complex aggregate. Section IV concludes.

1 comment:

Tobias Schaffner said...

It is not clear from the abstract if Professor Kingsburry is suggesting that Grotius failed to recognise the possibility of settling disputes through arbitration. In order to avoid any doubts about the question I quote here the relevant passage from De Jure Belli ac Pacis (Kelsey translation), Bk. II, Ch. XXIII, §viii:
1. The second method [to avoid war] is by agreement to arbitrate. This is applicable among those who have no common judicial authority...
3. Especially (maxime), however, Christian kings and states are bound (tenentur) to pursue this method of avoiding wars.
4. would be advatnageous, indeed in a degree necessary, to hold certain conferences of Christian powers, where those who have no interest at stake may settle the disputes of others, and where, in fact, steps may be taken to compel parties to accept peace on fair terms. [here Grotius refers to Molina and Aegidius Regius]
Tobias Schaffner, Cambridge (UK)