Alter Book Symposium: Comment by Jacob Katz Cogan

by Jacob Katz Cogan

[Jacob Katz Cogan is the Judge Joseph P. Kinneary Professor of Law at the University of Cincinatti College of Law]

At the beginning of the fourth chapter of her new book The New Terrain of International Law: Courts, Politics, Rights, Karen Alter asks: “why [are] there . . . more international courts today than at any point in history”? (112). It is an interesting and important question. Seeking to “provide[] a partial explanation for the trends” in the proliferation during the past twenty-five years of the “new-style international courts” (which she documents in the preceding chapter), Professor Alter reviews “World History and the Evolving International Judiciary” (112). She argues, in short, that “at the end of World War II governments were able to reject proposals for compulsory international judicial oversight of their behavior” (112). Even so, “[c]hanges in legal practice in the United States and Europe during and after the Cold War meant that foreign legal and quasi-legal bodies increasingly adjudicated allegations of economic and human rights violations abroad” (112). Thus, “[g]iven the choice of European and American judicial review or international judicial review, many governments preferred [the latter] especially because international initiatives . . . created added incentives for governments to show progress toward democracy and human rights protection by embracing binding rules and international legal oversight” (113).

To make this argument, Professor Alter begins by dividing up the past hundred-plus years into three “critical junctures”: the Hague Peace Conferences, the end of World War II, and the end of the Cold War. She focuses in particular on the last two periods, taking each in turn. Her review of those eras recalls global as well as regional initiatives – the latter divided into (Western) Europe, Latin America, Africa, and Asia and the Middle East – recounting the successful, if uneven and oftentimes halting, establishment of international courts. Her story does not only turn on critical junctures, though. She recognizes that “between international legislative moments [i.e., the establishment of courts], lawyers and judges are adjudicating cases within the legal frameworks they have, and international secretariats are working with judges, advocates, and governments to adjust existing systems so as to address known problems” (117).

Based on this “whirlwind historical account” (159), Professor Alter “extracts . . . five general political factors that make governments more willing to consent to international judicial oversight” (154). First, she posits that “a distrust in government is the key impetus behind the political support of international judicial oversight” (154). In this regard, “[g]overnments only sign on [to courts] . . . once their legitimating suggestions of other options ring too hollow [to their populations] to be convincing” (154). Resort to courts, thus, is a function of “disenchantment with domestic checks and balances” (154-55). Second, “global initiatives have aided the implantation of international law in domestic legal systems, and thus facilitated the spread of embedded approach to international law enforcement” (155). Those initiatives – including the Washington Consensus, Convention Against Torture, the Rome Statute of the International Criminal Court, and the UN’s Millennium Development Goals – have pushed states to reform their domestic systems. Third, “the overlapping nature of national, regional, and international jurisdiction propels advancements at each level” (155). Thus, failures or successes in one part of the international system have repercussions elsewhere. Fourth, the “legal and political dynamics interact to produce institutional change between conjunctural moments” (156). Fifth, “the United States (and Europe) facilitate the spread of international law and international adjudication when leaders articulate, accept, and respond to legalist arguments” (157). Though Professor Alter seeks to draw out these factors and establish connections between “political forces” / “global forces” and the establishment of regional and global tribunals, she recognizes at the very conclusion of her discussion that “international judicial systems evolve slowly over time, propelled by conjunctural events and shifting legal practice” (160).

Like many social scientists, Professor Alter’s “history” is a search for principles or factors that explain why and when certain phenomena occur. By looking at a series of events over time (such as the establishment of global and regional tribunals), we can, inductively, extrapolate common causes or facilitating trends. Once we know the conditions under which certain events have occurred, we can predict when and how they might be recreated in the future. Actors in the international arena, equipped with this knowledge, can then make decisions accordingly. Suzanne Katzenstein’s article on the creation of international courts (the subject of a recent discussion on Opinio Juris between Professors Alter and Katzenstein) is another (if perhaps more stark) example of this approach.

To her credit, Professor Alter does not choose between two theories of change that appear in the social science literature: one that focuses on crises (the “punctuated equilibrium” theory) and the other that looks to incremental developments (the gradualist theory). (For a useful discussion, see Capoccia and Kelemen’s 2007 article in World Politics here.) Professor Alter recognizes that the change she’s interested in may stem from multiple processes – both “critical junctures” (such as the end of the Cold War) and longer trends (for example, the work of judges, lawyers, secretariats, and others that takes place relatively slowly and between critical junctures). In other words, change may be produced by external and internal factors; during intense and concentrated moments and over the longue durée; and by important actors and less noted persons alike. This allows her to take a broader range of factors into account.

But Professor Alter’s openness to differing theories of change and her immense knowledge of these tribunals does not remedy the ultimately unsatisfying nature of her inquiry into the causes of the proliferation phenomenon – for two reasons. First, there is not enough scholarship at the moment to draw proper conclusions on the topic. At the very end of the chapter, Professor Alter recognizes (160) that to truly understand why the number of tribunals has increased so dramatically during past few decades, we need actual histories that explain why decisions were taken to establish these courts. With few exceptions (for example, Bates’s The Evolution of the European Convention on Human Rights), these do not yet exist. As a consequence, Professor Alter’s causal explanations for the creation of international courts and the subscription by states to their statutes are mostly general, sometimes tenuous, and occasionally implausible. She is unable to convincingly connect the dots.

Second, the answer to Professor Alter’s question (“why [are] there . . . more international courts today than at any point in history”?) is much more historically contingent and contextual than her method allows. It is commonplace among non-historians to seek out the origins of current ideas and institutions, as if examining events, as they occurred in the past, might provide insights into analogous contemporary phenomena. In other words, there is an underlying assumption that developments (like the creation of international courts) can be attributed to (or understood in light of) trans-historical dynamics (her “five general political factors”). But the past is infrequently precedent in this way or capable of such unifying theories. To answer the question that Professor Alter poses requires taking current events on their own terms and placing them within the context of our own times. It requires, in other words, a deep and broad investigation of the present and how it differs from the past.

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