Alter Book Symposium: Comment by Tonya L. Putnam

[Tonya L. Putnam is an Assistant Professor at the Department of Political Science at Columbia University]

I’m very pleased to have been asked to contribute my thoughts on Karen Alter’s The New Terrain of International Law. Alter’s cogently argued new book exemplifies what well-executed interdisciplinary scholarship can achieve. It puts into productive dialogue several core preoccupations of political scientists, international lawyers, and practitioners as they relate to the growing universe of international courts (ICs). Not only does the resulting analysis map the outputs of, and relationships between intensively studied ICs like the ECJ, the ECtHR, and the WTO panel system, and more recently created, and less well-known, ICs and court-like bodies, it simultaneously theorizes the political interactions that create, sustain, confound, and (at times) transform their activities. From it we gain a compelling picture of how new-style ICs are using international law to reshape political interactions spanning the interstate to the local level around issues from property rights to human rights.

The contributions of The New Terrain of International Law are too many to enumerate in detail. In the space I have here, therefore, I focus on two areas where future scholars can benefit from the foundation Alter lays in this volume. I then propose a set of questions about whether further proliferation of ICs may begin to complicate international affairs.

The first area concerns unpacking why states join (or select into) new-style ICs. One need not be the type of IR scholar steeped in structural realist assumptions about the importance of sovereign autonomy and self-help to find states’ choices to delegate compulsory legal jurisdiction to ICs attention-grabbing, especially where this authority is paired with liberal rules of access. Alter identifies several factors that correlate with government consent to IC oversight (p.154 et seq). She also distinguishes conceptually between ‘self-’ and ‘other-binding’ delegation from the perspective of delegating executives. Given, however, that Alter’s objective in The New Terrain of International Law is to analyze a seismic shift in the international legal landscape, her focus is naturally on existing ICs. Her analysis, however, points the way toward a more complete theory of why states delegate this authority in the first place.

Why insist on such an account? To the extent choices to create new-style ICs reflect the priorities of prospective members (or those of relevant state subcomponents) and their assessments of the political and institutional contexts in which they operate, a theory of delegation (and state bargaining around delegation) are arguably needed to fully explain ex post political effects. A few considerations suggest this is so. First, all actors operate with imperfect information about other actors and their decision environments, and the quality of this information may change over time as more ICs are created. Second, different actors may not share political objectives, and they may have unequal resources to pursue those objectives. Third, even where information is good, and actor preferences are more or less aligned, other factors may intervene to confound even the best-laid plans of government officials, lawyers, and judges. Thus, trying to reconstruct decisions to delegate on the basis of positive cases exclusively may embed a potentially misleading functionalism into explanatory accounts—which is why Alter is careful to describe this aspect of her argument as a theory-building (as opposed to a theory-testing) exercise.

One way forward using the inductive empirical methods Alter productively leverages would be to compare failed attempts to create similar ICs or other standing legal bodies at different times, or in different political, legal, and geographic settings. Other projects might inquire into rejected designs for ICs that were eventually created, or try to trace drafters’ understandings of how including, or excluding, compulsory IC oversight, or permissive rules of access, might change an organization’s membership or its ability to carry out its mandated functions.

Yet another approach might be to contrast, or perhaps even to synthesize Alter’s main findings with causal accounts found in more deductive and mathematically formal work on institutional design and delegation to international organizations—of which ICs are, obviously, a subset. An undertaking of this type would likely confirm many of Alter’s insights, but might also suggest refinements to her hypotheses about, for example, when and why governments and non-states actors turn to law and legal institutions to pursue political ends. From the other direction, this body of political science work would unquestionably benefit from encounters with Alter’s richly empirical analytic accounts.

A second possible extension of the ideas in The New Terrain of International Law involves further theorizing the origins and effects of decisions to grant non-state actors standing to initiate claims. Alter observes that politics between states and ICs vary according to judicial function, and that IC effectiveness in each of four roles—dispute resolution, administrative review, enforcement, and constitutional review—depends critically on the scope of jurisdictional competence, rules of access, and the existence of compliance constituencies that are willing and able to use IC rulings to bring about domestic-level change. The incorporation of direct rights of private access in the design of several new-style ICs (though notably not in the European Court of Justice) is potentially quite radical since, when paired with compulsory jurisdiction, it all but destroys the ability of governments to set the legal dockets of ICs, or to control the targets and timing of specific complaints.

Nowhere is this more puzzling than with regard to new-style ICs tasked with enforcing human rights. A growing body of legal and political science scholarship has begun to explore the impact of how making the right of individual petition to the European Court of Human Rights (ECtHR) universally obligatory has transformed the work—and the workload—of that IC. The New Terrain of International Law makes an invaluable contribution to this area by analyzing ICs outside Europe, and notably in Africa, where states are creating new-style courts with direct rights of access, or expanding the jurisdiction of ICs created for other purposes to include human rights claims, as with the ECOWAS Community Court of Justice. These developments, along with counter-examples, such as the Southern African Development Community’s recent decision to eliminate standing for individual to access its Tribunal, indicate this is an area where further exploration of the politics involved is likely to be quite fruitful.

Finally, Alter’s work, in this volume and elsewhere, brings into focus a number of compelling questions about possible network-type effects that may follow from the global proliferation of ICs:  Is it possible that creating more ICs, or expanding the competences of existing ICs may lead to contentious instances of jurisdictional overlap, pervasive forum shopping, conflicting IC rulings, and accompanying political and organizational clashes? Is this risk higher where non-state actors are ‘driving the bus’ with regard to claim initiation? If so, might one start to wonder whether, in the near to medium term at least, developments toward an increasingly dense field of new-style ICs could slow, or even undermine, the transactional gains and normative attractiveness of the recent turn toward international law-governed interactions?

To conclude, The New Terrain of International Law is a fantastic book that raises the bar not only for studies of international courts and tribunals, but also for empirical scholarship on international law and institutions more generally.