Agents or Trustees? International Courts in their Political Context
| Published date | 01 March 2008 |
| Date | 01 March 2008 |
| DOI | 10.1177/1354066107087769 |
| Subject Matter | Articles |
Agents or Trustees? International Courts in
their Political Context
KAREN J. ALTER
Northwestern University, USA
In International Relations applications, theorists employing Principal–
Agent (P–A) theory have posited that the fact of delegation defines a
relationship between states (collective Principals) and international
organizations (Agents) where recontracting threats are the predom-
inant way states influence IOs. Developing a category of delegation to
international Trustees, I argue that recontracting tools will be both
harder to use and less effective at influencing the Trustees. Trustees are
(1) selected because of their personal reputation or professional norms,
(2) given independent authority to make decisions according to their
best judgment or professional criteria, and (3) empowered to act on
behalf of a beneficiary. These three factors account for the different
politics between Principals and Trustees, a politics aimed at either
keeping issues outside of the domain of the Trustee or at rhetorically
engaging the Trustee’s authority in an effort to persuade the common
‘beneficiary’ whose loyalty and respect both States and the Trustee
seek. In explaining why recontracting threats are not central to
Principal–Trustee relations, the analysis bounds the realm in which we
might expect P–A theory to apply, and provides a theoretical basis to
question the ‘rational expectations’ claim that ICs are tailoring their
decisions to reflect the wishes of powerful states and avoid adverse
recontracting.
KEY WORDS ♦International Courts ♦international law ♦international
organization ♦Principal–Agent theory
Delegation of interpretive authority to international courts is expanding
exponentially. In 1985 there were seven international legal bodies meeting
the Project on International Cour ts and Tribunal’s (PICT) definition of an
international court, meaning (1) a permanent institution, (2) composed of
European Journal of International Relations Copyright © 2008
SAGE Publications and ECPR-European Consortium for Political Research, Vol. 14(1): 33–63
[DOI: 10.1177/1354066107087769]
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European Journal of International Relations 14(1)
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independent judges, (3) that adjudicate disputes between two or more en-
tities, one of which is a state or international organization, (4) working on the
basis of predetermined rules of procedure and (5) rendering decisions that
are binding.1Today there are 26 international courts that meet this defin-
ition and they are increasingly active, having issued 69 percent of their over
15,000 decisions, opinions and rulings since 1990.2
The promise of delegation to International Courts (ICs) is that ICs will cre-
ate a legal and political space where regular politics and the power disparities
in the world do not shape how the law is interpreted and applied. The idea that
ICs can take away state autonomy in interpreting international commitments,
and empower actors outside of powerful states, is for many unsettling. A num-
ber of scholars have used the ideas of Principal–Agent theory (P–A) to argue
that states are actually controlling what merely appear to be independent
International Courts. P–A theory focuses on the unique tools of political con-
trol that states have by virtue of being part of the ‘Principal’ body that writes,
and thus can re-write, the Agent’s ‘delegation contract’. P–A theory posits that
the ability of the Principal to ‘sanction’ an Agent by changing the contract (fir-
ing or not reappointing the Agent, rewriting contractual terms to undercut the
Agent’s realm of authority, or cutting the Agent’s budget) provides states with
significant political leverage that they can use to rein in Agents who go astray.
P–A theory expects political control to be incomplete — some degree of
‘Agency slack’ (unwanted Agent behavior) will be an inherent cost of delega-
tion. The theory also expects courts to be relatively independent Agents com-
pared perhaps to administrative agencies, if only because recontracting is
harder to orchestrate with respect to courts compared to administrative agenc-
ies. But recontracting tools should nonetheless provide significant influence
over IC decision-making. For example, Paul Stephan argues:
Knowing that they can be replaced, the members of the [international] tribu-
nal have an incentive not to do anything that will upset the countries with
nominating authority. In those cases where the members nonetheless veer off
in an unanticipated direction, the nominating state can institute a course cor-
rection within a relatively short period of time by choosing ‘sounder’ candi-
dates for the tribunal. Thus one should not expect ambitious, systematic, and
comprehensive law coming from an institution endowed with the authority to
develop unified law on an international level. (Stephan, 2002: 7–8)3
Most comparative judicial politics scholars reject out of hand arguments like
Stephan’s, believing as a matter of course that judges are not mere agents of
the legislative actors that create them, and knowing that examples of ambitious
and systematic legal construction, even by international courts, are easy to find
(Stone Sweet and Brunell, 1998; Burley and Mattli, 1993; Weiler, 1991).
But one sentence rejections fail to convince because they do not take
Principal–Agent arguments seriously enough. Surely there must be some limit
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