The Turn to Performance Remedies: Institutionalization, Multilateralization, and the Shifting Role of International Courts

Abstract

The impressive rise in the number and activity of international courts and tribunals over the past quarter of a century was accompanied by a little-noticed qualitative change in the role of adjudication, and of litigation more broadly, away from settling bilateral disputes and towards managing legal regimes. Whereas previously international courts were hesitant regarding the very possibility of issuing direct injunctions, over the past decade adjudicators, from the International Court of Justice to the European and Inter-American Courts of Human Rights, and even some ICSID Tribunals, have turned to performance-type remedies, determining in detail the conduct that states must adopt in order to fulfil their obligations and avoid future responsibility. Employing the concepts of voice and exit, this article surveys this shift, arguing that it has become possible due to the multilateralization of international adjudication, now overwhelmingly provided for under multilateral legal regimes. On the one hand, courts acting within institutionalized regimes tend to issue performance remedies in order to affirm the regime. On the other hand, multilateralization makes it difficult for a state dissatisfied with a judgment to respond in ways that credibly threaten the existence, authority, or relevance of the adjudicator. Multilateralization affects the relationship between parties and courts in two different ways. First, the audience for judicial decisions is no longer the sole parties to the dispute but comprises all the parties to the relevant regime. Second, within a multilateral legal regime the parties to the dispute have diminished power over the court.