HILJ Online Symposium: Suzanne Katzenstein Responds to Karen J. Alter

[Suzanne Katzenstein is a Visiting Assistant Professor at the Duke University School of Law.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Thank you to Opinio Juris and the Harvard Journal of International Law for hosting this exchange and to Karen Alter for her thoughtful comments. My article’s central question is why governments create global international courts or, put more precisely, why some government attempts to create such courts succeed and other attempts fail. I evaluate all attempts at international courts that I could identify that reached the multilateral treaty negotiation or treaty drafting stage. This amounted to four successful and seven failed attempts at establishing courts invested with general jurisdiction or relating to international criminal law, the law of the sea, and human rights. The dominant explanation for the creation of international courts focuses on the functional incentives of governments, such as the need to overcome collective action problems or to signal credibility. I argue that the functional explanation provides insufficient insight into the successes and failures of the proposals I study. I evaluate two additional explanations. The first focuses on the preferences of the most powerful states, the UK and the US. I propose a second that emphasizes the role of legal crises and international lawyers. During periods of legal crisis, governments are more willing to cooperate with one another in order to bring stability back to the legal and political order; and they are also more receptive to the proposals for international courts made by international lawyers. Neither the power nor the crisis argument fully explains the eleven attempts analyzed in the article. Not surprisingly, history is too complex. But taken together, the two explanations provide substantial insight into ten of the eleven cases, and into the creation of international courts across the 20th century.

Alter rightly notes that I define international courts and tribunals narrowly—as only those institutions that are open to any state to join. This means I exclude both regional and ad hoc criminal tribunals. I do so not only for the sake of feasibility but also because I assume that state concerns about protecting their sovereignty are distinct in those contexts. States, for instance, retain more control over the design and operation of regional than they do of fully international courts (for example in the area of judicial appointments), and most state officials are not subjected to the jurisdiction of the ad hoc criminal tribunals they help create. In addition, current scholarship, including Alter’s own work, persuasively shows that the creation of regional courts has been influenced both by region-specific dynamics as well as cross-regional emulation.

I make three other important definitional and scope choices. I study only those proposals that reach the multilateral treaty drafting or treaty negotiation stage. These attempts seemed to have a real chance at succeeding. I define “success” as courts with treaties that actually entered into force. Finally, I also exclude tribunals that deal solely with economic disputes, such as trade and investment disputes. Here, my assumption is that powerful states—those with the largest markets—enjoy unique bargaining leverage during negotiations.

As Alter discusses, this narrowing and simplification, however necessary, has the drawbacks of offering at best a partial picture. She notes three possible limitations of my analysis. First, by focusing exclusively on efforts to create new global international courts, my article overlooks the more complex institutional choices that states actually confront: not simply whether or not to create an international court, but whether to create a court or invest an existing court with jurisdiction. This is a persuasive critique of the crisis and power arguments.

But simplified arguments and a narrowed inquiry into international courts do not, in themselves, require one to blind oneself to regime complexity. On the contrary, some of the more interesting and counter-intuitive components of my analysis relate precisely to the rise of regime complexity during the 20th century. Neither the crisis nor the power explanation, for instance, is able to adequately explain the creation of the International Tribunal of the Law of the Sea (ITLOS). There, regime complexity—the availability of ad hoc arbitration and especially the ICJ—offers a better and surprising explanation. Rather than discourage the creation of new courts, the ICJ moved states towards establishing a new tribunal. Developing countries viewed the ICJ as biased against weaker countries. By establishing a new tribunal, and expanding the menu of potential dispute-settlement venues, states were able to agree on compulsory jurisdiction.

My analysis reveals that regime complexity was less important in shaping state considerations of alternative venues in the other cases, however. Delegates discussed the possibility of granting jurisdiction to existing tribunals in at least four of the other negotiations I studied, but these discussions were quite fleeting. The fact that regime complexity influenced ITLOS but not the earlier negotiations of other courts makes sense. The ITLOS negotiations occurred significantly later in the 20th century, and the institutional landscape had, by then, become more crowded.

Alter’s second point is that, by excluding regional courts from my analysis, the article overlooks how failed or stifled attempts at the international level inspired new regional proposals. For example, regional judicialization dissipated the demand for a global human rights court and an international trade court. This is a compelling point and one that helpfully shows how institutional developments at the global and regional levels are interlinked, sometimes quite subtly. It also highlights a broader question of why non-state actors or state officials propose international courts in some instances but not others.

Neither the crisis nor the power explanations are geared towards addressing that broader question. But my analysis of negotiations reveals that failed proposals, even those that do not reach the treaty negotiation stage, can be consequential, including beyond inspiring regional initiatives. For example, in the 1920s, a group of continental European lawyers circulated various proposals for a criminal court to prosecute both states and state officials, all of which were non-starters. In the 1930s, they retooled these failed proposals to help create a criminal court that would allow states to prosecute alleged terrorists. (For more on this, see Mark Lewis’ recently published book, The Birth of the New Justice: The Internationalization of Crime and Punishment 1919-1950.) That case illustrates that failed proposals can serve as unexpected bridges not only between the global and regional levels, but also between different legal agendas—for instance, ensuring state accountability and bolstering state security.

Alter’s last point is that my narrowing the universe of cases means that my article is silent about some of the leading international courts and tribunals, like the WTO dispute settlement body and the European Court of Human Rights. My hope is that this is a price worth paying, especially given the existing vibrant scholarship on these courts.

In addition to shedding new light on successful attempts at judicialization, shifting one’s focus to less studied cases is useful in its own right. For instance, the most interesting case I examined was the doomed effort in the early 1950s to create a criminal court. Although it would be easy to assume this court was part of a new-founded commitment to protect human rights, the drafting documents show that states were primarily concerned with protecting their territorial integrity that had proven so fragile only a few years earlier. Understudied cases, like this one, open the door to further questions about how the objectives of courts evolve over time, questions addressed by Alter’s newly published work. In this instance, understudied cases also offer new insights into the statist origins of the human rights movement’s mobilization for an international criminal court.