Patches and the proliferation of courts and tribunals, an explanation from complexity theory

Complexity theory can help us understand the ecosystem of international dispute settlement. That is right, I called international dispute settlement an ecosystem, which is composed of different components. This relates to the concept of “patches,” as developed by Stuart Kauffman. Such a notion means to decompose into smaller parts, but without being reductionist.

The ecosystem of international dispute settlement can be understood to be divided into “patches”, that is, the whole array of courts and tribunals, for example, the ICJ, the WTO DSB, Human Rights Courts, International Criminal Court, International Tribunal for the Law of the Sea, and the Tribunals for Investment Arbitration.

What are the component parts? The first big patches can be understood as the Courts and Tribunals. However, each court and tribunal can be as well subdivided into patches, in which we can find a diverse ecosystem of dispute resolution, the patches within the courts and tribunals can be understood for one side the actual seating courts and the actual seating arbitral tribunals, but as well, the litigators taking place in the disputes, the administrative staff serving the operation of the courts and the arbitral institutions, and on the other side, the academics who comment and work on the case law generated.

These courts and tribunals are entrenched in cooperation and competition. They compete for cases through their jurisdictional powers, cooperate in the sense of citing each other, and sometimes get into direct conflicts, at times they seem to have overlapping jurisdictions, at others they do not overlap, at times they get into direct conflict when the jurisdictions tend to overlap, and at others when there is the possibility of overlap they tend to cooperate.

The core argument behind this is that variation in the ecosystem of international dispute resolution is an actual benefit for the ecosystem. What is the benefit? in the first place, it’s survival. How do the different patches interact? Through couplings how do couplings take place? Through the interpretation of principles through the sources of international law, citing each other, or reference to other courts and tribunals (sensitivity to persuasive authority from other courts)

But why is proliferation good, then? If there was only one court or international tribunal, it would mean that it would be “one patch”. And the variation in the environment will mean that such a patch will have to be sufficiently strong to confront the environmental changes, that is, with a monoculture of species to withstand everything. If you have a diverse culture of organisms or patches, in this case, it can have the aggregate benefit of the survival of the system, for one respect, and that if one patch is capable of helping in solving a complex problem, it could have a rippling effect on the other patches, causing a possible cumulative positive answer to solve a complex problem thrown by the environment.

Hence, the proliferation of courts and tribunals is an actual benefit for the ecosystem of international dispute settlement and, all-in-all, to the system of international law.

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