Many scholars argue that international courts do not only resolve disputes, but also influence the behavior of states that are not parties to those disputes. They do so by clarifying legal principles and providing focal points for cooperation. While we agree that international courts’ influence reaches beyond the specific cases they treat, we take issue with the assumption that their intervention necessarily increases legal certainty and reduces future conflict by constructing focal points. Our project adopts an interdisciplinary lens and a mixed-methods approach to examine the degree to which international judicial bodies can and will provide focal points. Our working theory is that, in many cases, focal points will not be provided. This is because courts either generate rival rules or give complex and case-specific decisions that cloud out any simple and generalizable solution that would stand out as focal. Such decisions give states a great deal of flexibility in the rules they choose to adopt, especially if there are distributional consequences associated with the prevalence of one rule over another. States’ adoption of contending rules makes law more uncertain and increases the chances for further disputes. We focus on the International Court of Justice (ICJ) as the most obvious focal point provider, as it is often considered to have the final say in many areas of international law. We illustrate and further develop our argument by examining the ICJ’s impact in a pilot study on maritime delimitation. Our analysis and findings promise to shed light on how courts’ inability or unwillingness to provide unique focal points influence state strategies and bargaining outcomes—a question so far neglected in the International Relations and Law literature.
Timeline: January - December 2020