Domestic Law Goes Global: Legal Traditions and International Courts Sara Mclaughlin Mitchell and Emilia Justyna Powell Frontmatter More Information

Cambridge University Press 978-1-107-00416-0 - Domestic Law Goes Global: Legal Traditions and International Courts Sara McLaughlin Mitchell and Emilia Justyna Powell Frontmatter More information

Domestic Law Goes Global: Legal Traditions and International Courts

International courts have proliferated in the international system, with over one hundred judicial or quasi-judicial bodies in existence today. This book develops a rational legal design theory of international adjudication in order to explain the variation in state support for international courts. Initial negotiators of new courts, “originators,” design international courts in ways that are politically and legally optimal. States joining existing international courts, “joiners,” look to the legal rules and procedures to assess the courts’ ability to be capable, fair, and unbiased. The authors demonstrate that the characteristics of civil law, common law, and Islamic law influence states’ acceptance of the jurisdiction of international courts, the durability of states’ commitments to international courts, and the design of states’ commitments to the courts. Furthermore, states strike cooperative agreements most effect- ively in the shadow of an international court that operates according to familiar legal principles and rules.

SARA MCLAUGHLIN MITCHELL is Associate Professor in the Department of Political Science at the University of Iowa.

EMILIA JUSTYNA POWELL is Assistant Professor in the Department of Political Science at the University of Alabama.

© in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-00416-0 - Domestic Law Goes Global: Legal Traditions and International Courts Sara McLaughlin Mitchell and Emilia Justyna Powell Frontmatter More information

Domestic Law Goes Global: Legal Traditions and International Courts

Sara McLaughlin Mitchell University of Iowa Emilia Justyna Powell University of Alabama

CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Tokyo, Mexico City

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Library of Congress Cataloguing in Publication data Mitchell, Sara McLaughlin. Domestic law goes global : legal traditions and international courts / Sara McLaughlin Mitchell, Emilia Justyna Powell. p. cm. ISBN 978-1-107-00416-0 (hardback) 1. International courts. 2. Arbitration, International. 3. Law–International unification. 4. International law–Sources. I. Powell, Emilia Justyna. II. Title. KZ6250.M58 2011 341.5Ł5–dc22 2011002698

ISBN 978-1-107-00416-0 Hardback

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Contents

List of figures pagevi List of tables vii List of boxes ix Acknowledgments x List of acronyms xiii

1 The creation and expansion of international courts 1 2 Major legal traditions of the world 20 3 A rational legal design theory of international adjudication 68 4 Domestic legal traditions and the creation of the International Criminal Court 96 5 Domestic legal traditions and state support for the World Court 129 6 The rational design of state commitments to international courts 164 7 The consequences of support for international courts 194 8 Conclusion 223

References 238 Index 255

Figures

2.1 Frequency of major legal traditions page 28 5.1 Reservations placed on optional clause declarations 140 5.2 PCIJ/ICJ compulsory jurisdiction acceptance by legal system types 148 5.3 Acceptance rates for civil law states 148 5.4 Optional clause declarations, civil law states 149 5.5 Optional clause declarations, common law states 150 5.6 Acceptance rates for common law states 150 5.7 Acceptance rates for Islamic law states 151 6.1 Compromissory clause treaty memberships 180

Tables

2.1 Fundamental differences between civil, common, and Islamic legal traditions page 25 4.1 Descriptive statistics for Chapter 4 113 4.2 Rome Statute ratification and signature rates 119 4.3 Signature and ratification of the Rome Statute, 1998–2004 120 4.4 Substantive effects 121 4.5 Controlling for the Simmons/Danner credible commitment variables 126 5.1 Descriptive statistics for Chapter 5 147 5.2 Markov transition logit model: PCIJ/ICJ compulsory jurisdiction acceptance 152 5.3 Substantive effects: PCIJ/ICJ compulsory jurisdiction acceptance 152 5.4 Markov transition logit model: PCIJ/ICJ compulsory jurisdiction acceptance for joiners separately 155 5.5 PCIJ/ICJ compulsory jurisdiction acceptance and colonial legal origin 158 5.6 Monadic count of treaty memberships with compromissory clauses 160 6.1 Reservations for PCIJ/ICJ optional clause declarations 168 6.2 Regression analyses of optional clause declaration word counts 182 6.3 Negative binomial analyses of monadic compromissory clause treaty memberships 183 6.4 Substantive effects: monadic compromissory clause treaties 184 6.5 Logit analyses of PCIJ/ICJ optional clause reservation types 187 6.6 Substantive effects: PCIJ/ICJ optional clause reservations 187 6.7 Heckman probit analyses of PCIJ/ICJ optional clause reservation types 189 6.8 Logit analyses of PCIJ/ICJ optional clause reservation types, controlling for UK colony 190

vii

viii List of tables

6.9 Logit analyses of PCIJ/ICJ optional clause reservation types with La Porta et al.’s legal origin classifications 191 7.1 Descriptive statistics for Chapter 7 199 7.2 Effects of signature/ratification of the ICC Statute on state human rights practices, 1998–2004 200 7.3 Substantive effects: ICC signature and ratification 203 7.4 The effect of PCIJ/ICJ jurisdictional acceptance on dyadic militarized conflict 213 7.5 Substantive effects: dyadic militarized conflict 214 7.6 The effect of PCIJ/ICJ jurisdictional acceptance on conflict over contentious issues 215 7.7 Substantive effects: conflict over contentious issues 216 7.8 The effect of PCIJ/ICJ jurisdictional acceptance on interstate bargaining outcomes 217 7.9 Substantive effects: bargaining outcomes 218

Boxes

2.1 Classification of domestic legal traditions page 26 4.1 Domestic legal traditions and signature/ratification of the Rome Statute 115 5.1 Domestic legal traditions and years of PCIJ/ICJ compulsory jurisdiction acceptance 143

Acknowledgments

The origins of this project stem from a conflict management class that Sara Mitchell taught at Florida State University in the spring 2003 semester. The class discussed a paper by Professor Richard Bilder on international courts, which put forth the interesting argument that countries might be better able to settle interstate disputes peacefully if they could credibly threaten to take each other to the World Court. Sara wrote a paper on this topic for the 2003 Peace Science Society conference that looked at whether states were more likely to reach agreements over geo- political disputes if they jointly accepted the compulsory jurisdiction of the International Court of Justice, showing that indeed they did. While our fellow Peace Science scholars found these results interesting, they posed a question about selection effects, wondering which countries were more likely to support the World Court in the first place. Emilia Powell tackled this research question in a follow-up paper in 2004. She argued that in order to understand the variation in countries’ support for international courts, it would be fruitful to examine the similarity between countries’ domestic legal traditions and the legal rules employed by the courts. Having trained as a lawyer in a civil law country (Poland), she asserted that civil law countries would be more likely to recognize the jurisdiction of the World Court than common law or Islamic law countries due to the similarities between the civil law domestic legal tradition and the principles employed by the Court. This book is the culmination of these initial ideas, which led to several other jointly authored and solo-authored papers looking at other types of interstate cooperation (e.g. trade, military alliances, and conflict management), other international courts, such as the International Criminal Court, and the rational design of states’ commitments to international institutions. Several of these papers laid the groundwork for the theory and empir- ical analyses in this book. Some components of Chapters 2 and 5 were initially developed in the following paper:

Acknowledgments xi

Powell, Emilia Justyna and Sara McLaughlin Mitchell. 2007. “The International Court of Justice and the World’s Three Legal Systems.” Journal of Politics 69(2): 397–415. Chapter 6 is a modified version of the following paper: Mitchell, Sara McLaughlin and Emilia Justyna Powell. 2009. “Legal Systems and Variance in the Design of Commitments to the International Court of Justice.” Conflict Management and Peace Science 26(2): 164–190. We thank Cambridge University Press and Sage Publications Ltd. for permission to reprint this material. We are truly grateful for research assistance provided by a number of individuals in the past few years. The initial data on PCIJ/ICJ optional clauses was assembled at Florida State University with the assistance of John Brady, Efthymia Charalampaki, and Jacqueline H. R. DeMerritt. Data on compromissory clauses and World Court cases was collected at the University of Iowa by Karl Burhop, Eashaan Vajpeyi, Amanda Licht, Ross Schoofs, and Clayton Thyne. Beth Simmons graciously shared her data on the ICC with us. We also benefitted from usage of the most recent Issue Correlates of War (ICOW) dataset, Sara’s joint project with Paul Hensel. We are grateful to Jacqueline H. R. DeMerritt for her assistance in compiling background information on the World Court, especially for the material discussed in Chapter 5. Several colleagues gave us useful feedback on our research, including Terry Chapman, Paul Diehl, John King Gamble, Doug Gibler, Michael Greig, Darren Hawkins, Paul Hensel, Tanya Janulewicz, Charlotte Ku, Ashley Leeds, Lorna Lloyd, Ron Mitchell, Monika Nalepa, Brandon Prins, Jeff Staton, Jana von Stein, and Krista Wiegand. We are also grateful to several individuals who helped us maneuver through the book pub- lishing process including Paul Diehl, Gary Goertz, Mike Lewis-Beck, Zeev Maoz, Bill Thompson, and John Vasquez. We are also grateful for the excellent editorial guidance provided by John Haslam and Carrie Parkinson at Cambridge University Press. Sara is grateful to the University of Iowa for the Faculty Scholar Award that I received which provided three semesters off from teaching between 2008 and 2010, time that was essential for completion of this project. I am also grateful to folks at Rice University, especially Rick Wilson, Ashley Leeds, and Victor Marin, for providing a temporary home in 2009 for three months of solid work on the book and excellent moral support. I appreciate many useful comments provided on various iterations of the book when I presented our research at the following universities: Iowa State University; Oklahoma State University; University of California,

xii Acknowledgments

Davis; Cornell University; University of Pittsburgh; and the University of Tennessee. I have truly enjoyed working with Emilia on this project. She stimulated my interest in legal explanations for interstate cooperation, teaching me how to think like a lawyer. She has also been a wonderful friend and co-author. Will Moore deserves special thanks for being such a wonderful mentor. I would also like to thank my husband, Steve, and daughter, Vivian, for providing so much love and support and being very understanding while I was gone for three months working on the book. I also owe a special thanks to my mother, Margaret, who has truly been the inspiration for my entire academic career. Emilia is grateful for the useful comments provided on the project at the Workshop on Law, Politics, and Human Rights at Emory University, and the University of Alabama. Sara Mitchell deserves a very special “thank you” for continuing to provide truly superb advice throughout my career, including this project. Her work has continued to inspire my interest in international relations and her true dedication as a mentor and friend is absolutely invaluable. Finally, and above all, this project would not be possible without the support and love of my family, especially my husband, Charles Wesley, and our daughter, Scarlett Sophia. I thank God for their endless encouragement and support for my academic endeav- ors, which allowed me to fully concentrate on this project. Scarlett, who was born during the beginning phases of the book, gave me the greatest gift: motivation. My parents Elżbieta and Jerzy and my brother Tadeusz deserve acknowledgment. They all continue to inspire me, not only with their knowledge of the civil legal tradition but also with their faith in my abilities. Thank you for supporting me all the way through my legal edu- cation in Poland. I also dedicate this book to my grandmother Zofia, who has always supported me in innumerable ways.

Acronyms

CCJ Caribbean Court of Justice CINC Composite Index of National Capability CIRI Cingranelli-Richards CIS Commonwealth of Independent States COMESA Common Market for Eastern and Southern Africa ECHR European Court of Human Rights ECJ European Court of Justice EFTA European Free Trade Association EU European Union GATT General Agreement on Tariffs and Trade HRC Human Rights Council ICC International Criminal Court ICJ International Court of Justice ICOW Issue Correlates of War ICRG International Country Risk Guide ICSID International Court for Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IICJ Islamic International Court of Justice ILC International Law Commission INGO International non-governmental organization IO International organization ITLOS International Tribunal for the Law of the Sea MID Militarized interstate dispute MTOPS Multilateral Treaties of Pacific Settlement NATO North Atlantic Treaty Organization NGO Non-governmental organization OAS Organization of American States OLS Ordinary least squares PCA Permanent Court of Arbitration PCIJ Permanent Court of International Justice

xiii

xiv List of acronyms

PTA Preferential Trade Agreement SIPRI Stockholm International Peace Research Institute EUGene Expected Utility Generation UN United Nations UNCLOS United Nations Convention on the Law of the Sea WTO World Trade Organization