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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 inter- national 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 juris- diction 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 © 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 CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Tokyo, Mexico City Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9781107004160 © Sara McLaughlin Mitchell and Emilia Justyna Powell 2011 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2011 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library 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 Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © 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 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 v © 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 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 vi © 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 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 © 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 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 © 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 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 ix © 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 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 coun- tries 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
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