As the world of international courts and tribunals has expanded over the past two decades, a fierce debate has erupted over whether or not they are “effective.”

The Peace Palace in The Hague, home of the International Court of Justice

Proponents of the courts have tended to argue in favor by pointing to individual successes.  The Yugoslavia and Rwanda tribunals have indicted and convicted major political and military figures.  The European Court of Human Rights has issued judgments that have compelled countries across the continent to modify their laws to respect the rights of minorities.  The World Trade Organization Appellate Body delivers judgments within 90 days and is widely credited with defusing tensions over trade issues.

Critics often seize on the vast gap between accomplishments and aspirations.  The persistence of large-scale violence in many parts of the world suggests that the international criminal courts have not fully succeeded in deterring leaders from committing crimes against humanity.   Many countries find ways to postpone or even evade compliance with the judgments of international courts.  And some courts – even the venerable International Court of Justice in The Hague – are hamstrung because relatively few nations have agreed in advance to be bound by their decisions.

In rhetorical terms, it’s rather easy to argue either way.  If you are a believer in the value of international institutions, you tend to judge these courts by their relative youth.  Look how much they have accomplished in a relatively short time.  Of course they have a long way to go.  As one judge who participates in our Brandeis Institute for International Judges once put it to me, “International justice is not instant coffee.”

If, on the other hand, you are a global skeptic, you tend to judge the courts by the relatively small return on investment.   Think what more good we could have done with the billions of dollars spend convicting a couple of hundred people from the former Yugoslavia and Rwanda.  And how does it help the rule of law to establish courts that countries can flout with impunity?  (Of course, there are also those who argue that international courts have become too powerful, aggrandizing themselves at the expense of a more constructive approach to international relations grounded in diplomacy and politics.)

So it is heartening that in recent years, a number of scholars have begun to look systematically at the question whether international courts are indeed effective.  And naturally they have had to begin by trying to define just what effectiveness means.

One starting point for the discussion of effectiveness has been the issue of compliance.   Both supporters and critics of the courts have looked to how completely countries have complied with the decisions of international judicial bodies.

But it is increasingly clear that compliance, by itself, is not a sufficient measurement.  After all, a court might achieve a 100% compliance rate by issuing such timid judgments that it is all too easy for countries to follow their dictates.  Alternatively, a court with a low compliance rate might be seen as playing a vital role in a gradual process of solidifying the rule of law in a region where democratic institutions are still evolving.

In this context, it is heartening to see that legal scholars from around the world have been giving more systematic attention to the question of effectiveness, moving beyond compliance to a broader range of criteria that better fit the political and public expectations of what international courts can and should achieve.

After all, we don’t create courts simply to test whether they will be heeded.  We create them for broader goals:  to provide an alternative to violence in settling disputes; to protect basic human rights; to provide stability in matters of commerce; to provide a bulwark against the undue accumulation of power.  And we do not create courts in a vacuum.  We create them in the context of many other imperfect institutions.  The interactions between courts and other institutions, in other words, are just as important as the activities of the judicial bodies on their own.

The question of “effectiveness” is one of the main research areas for a major new initiative called iCourts.  Based at the University of Copenhagen and funded with a major grant from the Danish government, iCourts was established to become a center of excellence for basic research on international courts and tribunals.

At the iCourts inaugural conference in September, the “effectiveness” agenda was on full display.   Work by scholars such as Yuval Shany, Lawrence Helfer, Karen Alter, Mikael Madsen and others have begun to unpack the dimensions of effectiveness, and bring dispassionate analysis to the field.  The analysis helpfully relies on interdisciplinary methods, bridging the work of legal scholars and political scientists.

I am by philosophy and by professional commitment a believer in the importance of international courts.   For this reason I welcome the development of rigorous attention to both their achievements and their limitations.  It will be better to have the argument on effectiveness with a shared vocabulary, and with solid information that reflects the full range of expectations and possibilities for an international rule of law.