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MARJAN AJEVSKI
on the issue of whether ICs are Agents or Trusties of states. As the name suggest in
the relationship between ICs and states, the states are the Principals who delegate
dispute resolution or law enforcement functions to ICs, for various reasons. In its
condensed form the P-A theory argues that ‘States are actually controlling what
merely appear to be independent International Courts’ due to the fact that states
have in their hands tools of political control. They write the mandate of ICs — i.e.
the starting point, as well as re-write it at subsequent dates, and they also control
the budgeting of the institutions and the appointments and re-appointments of
the Agents. Consequently, as the P-A theory goes, they have sufficient leverage
to use against stray Agents. While there may be some agency slack on the side
of courts, mostly due to the fact the courts are difficult to manage and not easy
to staff, all in all, the re-contracting tools provide significant influence over the
decision-making of ICs.'?
Alter has argued convincingly in the past against the P-A theory, introducing
a modification to the state — IC relationship by conceptualising ICs not as Agents
but as Trustees. In this view, ICs are inherently different than other international
organizations due to the “distinct logic of delegation”'* which posits that states
delegate functions to ICs for reasons that are specific to ICs either to harness “the
Trustee’s decision-making authority””, or the notion that adjudication inherently
requires an independent third party which incentivises states to reduce the
possibilities of any single state having overwhelming control over the court.
This logic of delegation makes the various control mechanisms in the P-A
theory largely ineffectual or unavailable “rendering member-state principals, qua
principals, essentially irrelevant to international judicial behavior, which is instead
guided primarily by rhetorical and legitimacy politics.”!* The debate is still ongoing
and Elsig and Pollack have critiqued the P-T framework as incorrect, offering the
appointment system at the WTO as an example of a single state, let alone a group
of states, using heavy-handed mechanisms available to it to attempt to control or
scare the WTO Applet Body members to accept its views on international trade
policy.”
Regardless of who wins this debate, the terms of reference for viewing the
relationship between states and international courts will not change as a result. The
4 Karen J. Alter, Agents or Trustees? International Courts in Their Political Context,
European Journal of International Relations 14 (2008), 33-63, 34.
15 Alter, Agents or Trustees?, 34-35.
16 Manfred Elsig - Mark A Pollack, Agents, Trustees, and International Courts: The Politics of
Judicial Appointment at the World Trade Organization, European Journal of International
Relations 20 (2012), 391-415, 395.
7 Alter, Agents or Trustees?, 40.
Elsig — Pollack, Agents, Trustees, and International Courts, 392.
1 Ibid.
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