ASTK15629U  Seminar: International Courts and Tribunals and the Politics of Dispute Settlement: An Introduction

Volume 2015/2016
Education

Elective in the Specialisation "International Relations, Diplomacy and Conflict Studies"

Content

Aim:

The aim of this seminar is to introduce students to a broad range of international courts and tribunals, to enable them to engage in discussions relating to the legitimacy, authority, efficacy and impact of these institutions. It will also allow them to better understand what these institutions do and what issues are at stake, when they are mentioned in the media or in other academic and/or professional contexts.

Beyond examining how and why these institutions were created, their scope and how they function, we will also examine member states’ perspectives on and responses towards these institutions. We will discuss selected case studies in class, in order to observe the tensions that arise when power, particularly to adjudicate, is delegated to a supranational adjudicative body. In addition, we will look briefly at whether non-governmental actors (e.g. interest groups and the private sector) as well as domestic political processes influence how states comply with the rulings of international courts and tribunals.  Finally, we will discuss the major limitations or contemporary challenges facing these institutions, and how they have responded to these challenges.

The focus of this seminar is on the political rather than on the law and jurisprudence of these institutions. We will therefore focus on actors and institutions in the field of international dispute settlement, and will not be discussing the technicalities of the judgments rendered. While the compulsory readings that have been assigned have predominantly been written by political scientists, some relevant empirical legal scholarship will be included in the optional readings, to offer cross-disciplinary perspectives on the same subject matter.   

Students are expected to do the mandatory readings before class and to actively participate during discussions. The seminar will conclude with a non-graded (pass/fail) assignment. 

Structure:

The seminar will comprise 14 sessions of 2 hours each and is expected to be structured into five sections (arranged in chronological order):

  • Part 1: Introduction and Key Concepts (2 sessions)
  • Part 2: Major International Courts and Tribunals (4 sessions)
  • Part 3: Regional Economic Courts in Europe and beyond (3 sessions)
  • Part 4: Regional Human Rights Courts in Europe and beyond (2 sessions)
  • Part 5: International Courts today: Limitations, Challenges and Triumphs (3 sessions)

 

Throughout the course, students will be introduced to key concepts and terminology that will allow them to critically reflect on any supranational judicial institution. Parts 1 and 5 will serve as the introduction and conclusion to the course respectively, and we will discuss issues that are of general relevance to the full spectrum of international courts.  

During Parts 2-4, we will take turns to examine the main features of each of the selected international judicial bodies, with regard to the following:

  • The geopolitical and historical setting (i.e. context) in which it was established

     

  • Their main features (structure) and scope/jurisdiction - What issue areas do they address and what are the governing rules/instruments? Who can bring cases to the court? How are judges selected? How many cases have been brought to the court?

What challenges does the court face? How have member states responded to its decisions, and do they generally comply? (If time permits, relevant case studies on controversies during each court’s history and threats to its survival will be introduced)

Competency description

This seminar would be useful for students who are interested in dispute settlement at the international and regional levels, and in the politics of supranational courts and tribunals. Through the assigned readings, as well as the in-class presentations and discussions, students will gain a broad understanding of supranational institutions and mechanisms for legalized dispute settlement, including those that exist in regions outside the EU (e.g. Latin America, Africa, Asia and the Caribbean).

Learning Outcome

By the end of the seminar, students are expected to be able to independently discuss the design of international judicial institutions and the relative merits and demerits of different institutional features (from both the national and supranational perspective).  They should also be able to critically reflect on the present-day challenges that international judicial institutions face.

Reading List

The main readings are included in this tentative seminar plan, but the list of readings is subject to change. The list of readings will be finalized by May 2015 and will mainly comprise articles from academic journals and book chapters as well as newspaper articles covering recent high-profile cases/disputes.

 

Students will not be required to purchase any reference textbooks. In addition to the compulsory readings, supplementary readings (optional) will be included in the finalized reading list. 

 

Seminar plan (DRAFT)

The following seminar plan is a draft - the final content and structure will be adjusted according to students’ interests.

 

The tentative number of sessions allocated for each part is indicated in brackets, alongside the headings of each section. Time will also be allocated during seminars for brief group discussions and presentations on selected readings – this will vary depending on students’ interests and how many students are taking the course:

  • Part 1: Introduction and Key Concepts (2 sessions)
    • Key concepts and categories (taxonomies) in the study of international courts will be introduced and discussed.

    • Compulsory readings:

      • Romano, C. P. (2011): A Taxonomy of International Rule of Law Institutions. Journal of International Dispute Settlement2(1), 241-277 (37 pages)

      • Excerpts from Alter, K., Helfer, L. Madsen, M. (forthcoming): How Context Shapes the Authority of International Courts (22 pages)

      • Optional article (link will be included to the published version, in the finalized reading list):

 

  • Part 2: Major International Courts and Tribunals (4 sessions)
    • The following courts and tribunals – which are truly ‘international’ in their jurisdiction - will be explored, in light of the concepts that were introduced in Part 1.

      • The International Court of Justice (ICJ) – 1 session

      • WTO Dispute Settlement Mechanism (WTO DSM) – 1 session

      • International Tribunal on the Law of the Sea (ITLOS) – 1 session

      • International Criminal Court (ICC) – 1 session

    • Key readings and cases will be discussed in relation to the abovementioned courts and tribunals. Students will be expected to discuss the readings in class.

  • Part 3: Regional Economic Courts (in Europe and beyond) (3 sessions)
    • Overarching theme: The CJEU as a central institution in European integration and a model for economic courts in other regions. The following courts and tribunals will be introduced and discussed:

      • Court of Justice of the European Union (CJEU) – 1 session

      • Presentation (by EU Law expert - guest lecture?)

      • Discussion of assigned readings

      • Getting closer to ‘home’ – how do Nordic judges feel about delegating decision-making to supranational courts? (Note: if there’s time - refer students to articles and ongoing project by Prof. Marlene Wind)

      • Selected regional courts and tribunals of other Economic Communities – 2 sessions (Note: these will be discussed with the CJEU as a starting reference point)

      • East African Court of Justice (EACJ)

      • Community Court of Justice of the Economic Community of West African States (ECOWAS Court)

      • Central American Court of Justice (CACJ) and the Caribbean Court of Justice (CCJ)

      • Andean Tribunal (AT)

  • Part 4: Regional Human Rights Courts (in Europe and beyond) (2 sessions)

    • The following courts and tribunals will be introduced and discussed:

      • European Court of Human Rights (ECtHR)(Note: I will explore the possibility of having a guest speaker here, perhaps from the Faculty of Law or a Danish human rights organization?)

      • Inter-American Court of Human Rights (IACHR)

  • Part 5: International Courts today: Limitations, Challenges and Triumphs (2 sessions)
    • Possible themes that can be addressed are as follows (note: some of them would have been touched upon in earlier parts of the course):

      • The relationship between member states and international courts

        • Principal-agent theory – (can be applied to CJEU but also other courts: member states as ‘masters’ and international courts as ‘agents’ of the treaty)

        • Factors that shape member states’ participation in international courts (e.g. legitimacy, legal resources and capacity, democratization, role of private and non-profit sectors...)

        • Factors that influence member states’ compliance with international law and international court rulings (e.g. enforcement mechanisms, domestic and foreign compliance constituencies)

      • Non-state actors

      • Other general issues or challenges

        • Legitimacy challenges - Case study on the African Union and the Prosecution of Kenyatta at the ICC, Colombia’s withdrawal from the ICJ in 2012? 

        • Mission creep? – International courts are increasingly making judgments in areas beyond what they were initially expected to (e.g. environmental protection, LGBTQ rights and non-discrimination, animal rights). Some economic courts have also ventured into becoming guardians of human rights (e.g. in East and West Africa). 

        • Why are there no supranational courts in Asia? (Case study on i. China’s Territorial & Maritime Boundary Disputes and ii) the Southeast Asian countries’ use of WTO Dispute Settlement Mechanism)

        • Overlapping jurisdictions and ‘fragmentation’ of international justice

        • ‘Gaps’ (e.g. international financial regulation, nuclear power, the environment and natural resources…)

There are no substantive prerequisites. However, students are expected to be interested in and to have an awareness of international politics, and basic world geography and history (i.e. a rough awareness of where countries are approximately situated on the map and of major historical events from World War I to the present).

Prior knowledge on international courts, including those in the EU (i.e. the Court of Justice of the EU -CJEU and European Court of Human Rights - ECtHR) might be an advantage, but is not necessary.
This seminar will involve a combination of lectures, student presentations and discussions revolving around the mandatory readings and relevant case studies. Guest lecturers - who are experts on the judicial institutions that are being studied - will be invited. A documentary screening on prosecution at the ICC will be arranged during one of the sessions if students are interested, and if time permits.

Towards the end of the seminar, students will be required to submit an individual response paper that discusses one of several questions that will be uploaded to Absalon early in the semester. Some additional research will be required, beyond what will be covered in class. Two ‘sample’ questions are included below:

a) In what circumstances have international courts (ICs) been either supported or rejected by the states that are under their jurisdiction? How do ICs respond to instances of the latter? Discuss this with reference to at least two international courts that were discussed in the seminar, using the key concepts that were introduced in class.

b) To what extent have the two European courts (CJEU, ECtHR) served as viable models for courts in other regions and contexts? Do certain contexts or institutional designs favour the establishment and acceptance of a supranational court?
Credit
7,5 ECTS
Type of assessment
Written assignment
Individual written assignment
Marking scale
passed/not passed
Censorship form
No external censorship
Criteria for exam assesment
  • Grade 12 is given for an outstanding performance: the student lives up to the course’s goal description in an independent and convincing manner with no or few and minor shortcomings
     
  • Grade 7 given for a good performance: the student is confidently able to live up to the goal description, albeit with several shortcomings
     
  • Grade 02 is given for an adequate performance: the minimum acceptable performance in which the student is only able to live up to the goal description in an insecure and incomplete manner
  • Category
  • Hours
  • Class Instruction
  • 28
  • Course Preparation
  • 123
  • Preparation
  • 15
  • Exercises
  • 40
  • Total
  • 206