Alter Book Symposium: The New Terrain of International Law

by Karen J. Alter

[Karen J Alter is Professor of Political Science and Law at Northwestern University and co-direcor at iCourts Center of Excellence at the Copenhagen University Faculty of Law.]

The New Terrain of International law: Courts, Politics, Rights uses the universe of operational permanent international courts (ICs), those with appointed judges that stand ready to receive cases, as a laboratory to explore the changing reach and influence of international courts in contemporary politics. In 1989 when the Cold War ended, there were six operational ICs. Today there are more than two-dozen that have collectively issued over thirty-seven thousand binding legal rulings. The New Terrain of International Law shows how today’s international courts differ fundamentally from their Cold War predecessors. Most ICs today have ‘new-style’ features, compulsory jurisdiction and access for non-state actors to initiate litigation, which scholars associate with greater independence and political influence. Most ICs today have a mandate that extends beyond inter-state dispute resolution. Chapters in the book chart the uneven jurisdictional landscape of ICs today, and offer an account of the proliferation of new-style ICs.

The book is first and foremost a social science treatment of the growing role of ICs in politics today. I argue that the trend of creating and using new-style ICs signals a transformation from international law being a breakable contract between governments towards a rule of law mentality. ICs are not, I argue, the vanguard of this political change.  Rather, the trend towards creating new-style ICs reflects the reality that international law increasingly speaks to how governments regulate national markets, treat their citizens and conduct war, and both citizens and governments want these increasingly intrusive international legal agreements to be respected. For the most part, ICs are doing exactly what governments tasked them to do. International judges are resolving questions about the law, and holding governments and international organizations to international legal obligations.

My primary objective is to understand how and when delegating authority to ICs transforms domestic and international relations. Formally speaking, ICs have the power to issue rulings in the cases that are adjudicated. I explain how this inherently limited power to speak the law translates into political influence. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, The New Terrain of International Law argues that ICs alter politics by providing legal, symbolic, and leverageable resources that shift the political balance in favor of domestic and international actors who prefer policies that are more consistent with international law. I am very clear that ICs cannot compel state compliance, but they can name violations of the law and specify remedies. I identify two groups of actors that help ICs.  Compliance partners are those actors within the state—governments, judges, administrators, members of the military–who already have the power to choose compliance with the law.  Compliance supporters are civil society actors who put pressure on compliance partners. Together, these two groups make up the IC’s compliance constituency. By mobilizing compliance constituencies of support, ICs can pressure governments to comply with international law. This mode of influence is not all that different from that of national supreme courts, which also draw on others to pressure governments to comply.

The soul of the book is the eighteen case-studies that use the passage of time to explore how the existence and actions of ICs are shaping international relations. The case studies examine the role of ICs in resolving Middle Eastern territorial and property disputes, settling disputes over the seizing of Japanese vessels in Russian waters, and pressuring the US Congress to rescind a tax break for American exporters. I investigate ICs operating in developing country contexts, adjudicating intellectual property disputes, leading Nicaragua to recognize indigenous land rights, Niger to compensate a former slave for her entrapment in the family law system, and facilitating the arrest and prosecution of Charles Taylor for his crimes in Sierra Leone. I discuss ICs in their constitutional role of assessing the legality of European rules designed to implement UN Security Council resolutions, and evaluating state behavior vis-à-vis higher order international law.  The case studies focus on politics outside of the court-room, assessing the extent to which ICs help provoke a meaningful change in policy. Not all of the efforts are unmitigated successes. Focusing on the legal politics before, during and after international adjudication, I seek an unvarnished analysis of the resources and limitations of ICs facilitating greater respect for international law.

Joseph Weiler’s endorsement of The New Terrain of International Law observes that “International lawyers dislike having political scientists in their professional kitchen and political scientists often cannot conceal their disdain of ‘naive’ lawyers.” But, he predicts, “Alter’s carefully researched and insightful new book changes all that. There is no lawyer who will not become wiser from reading it, while many a political scientist will marvel at their failure to note a seismic change in the international order.”

There will, however, be forceful critics. The introduction identifies three goals for the book: to reveal the paradigm change in creating and using ICs, to conceptualize how ICs variably influence politics across countries, courts, cases and issues, and to create non-utopian and thus more realistic expectations for ICs (p. 3-4).  I hope we can agree that I accomplish these goals, and that in doing so the book raises the floor for theorizing about ICs.

I do not shy away from acknowledging the normative implications of the analysis, which is where controversy may arise. My argument about a change from a contract to rule-of-law conception of international law is in direct contrast to law and economics scholars, some of whom would prefer that international law remain a voluntary agreement between governments. I also dismiss the idea that national constitutions serve as a fundamental barrier to following international law, arguing that understandings about the meaning of the constitutional words on paper shift over time (p. 293-4).  I argue that “[w]here states and judges do not want to draw on international law, they invoke national legal barriers to explain their actions. Where states and judges do want to follow international law, they find ways to do so” (p. 63).  The key actors making these choices are legal communities, with or without the support of national populations. “An American,” I argue, “cannot help but observe that public opinion is not enough. Legality is the currency of international courts, and domestic lawyers, law professors and judges are the gatekeepers of domestic legality. The future of international law resides in the choices of these actors, because the IC’s key compliance partners are motivated at least in part by a desire to be respecting the rule of law.” (p. 66)

The book’s conclusion considers ICs and democratic politics, examining the different ways scholars have tried to reconcile democracy and international law.  Those who want ICs to remain inter-state arbiters implicitly suggest that governments embody the democratic will, conveniently ignoring that governments also sometimes disregard the interests and desires of their citizens, and even their own laws and constitutions. Those who associate international law with global values implicitly conflate multilateral political choice with democratic choice, overlooking that most of today’s elected governments had little say in creating international law.  Those who see ICs as reflecting the demands of peoples and transnational advocates often conflate mobilized civil society groups with the democratic will.

All of these are problematic views of how democracy operates.  My own argument, the altered politics framework, sees IC dependence on compliance constituencies as a boon for international judges and a helpful constraint. We need to remember that “advocates are turning to ICs not because they offer the best, most legitimate, most democratic solution to the problem at hand.  It is always preferable when national political bodies on their own choose to do the right thing….  ICs are seized because litigants have reached a domestic political and legal impasse” (p. 355-356). Most of the concerns critics raise about democracy and international law only ‘perhaps’ exist, and I suggest that the loudest criticism comes from those whose arguments would or have lost in court. But, where there is a true disjuncture between international law and the democratic will, the solution may well be to tolerate some noncompliance.

In most cases, noncompliance will occur with mutually agreed upon accommodation. This outcome is not optimal, but if international law is giving way to a true democratic will, then perhaps some noncompliance is necessary and even normatively preferable.  To the extent that ICs can help prod states in the direction of greater law compliance, this development is to be encouraged. The book moves the debate beyond the question of if ICs influence state behavior. I also argue that it is pointless to debate the superiority of one theory of IC influence over another.  There are multiple pathways to encouraging respect for international law. The real question is: when are ICs able to encourage greater respect for the law? The answer is not: always. Indeed sometimes delegating difficult enforcement questions to ICs will not be a good strategy.  For example, personally I think it would be a bad idea to involve ICs in adjudicating monetary policy, exchange rates for currency or national political corruption. The book raises more questions than it answers, but hopefully it gets us closer to understanding when delegation to ICs can be a force that encourages greater respect for the law.

http://opiniojuris.org/2014/04/22/alter-book-symposium-new-terrain-international-law/

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