Alter Book Symposium: Reply by Karen 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.]

Thanks so much to Tonya Putnam, Roger Alford, and Jacob Katz Cogan for their thoughtful commentaries.  I appreciate their kind words, and their comments reflect one of my hopes for this book; that it will be a springboard for researching new and important questions about international courts and international law.

I want to respond while echoing some of the questions they raise.

My starting point for The New Terrain of International Law was the following question:  If the ‘problem’ of international law is its lack of enforceability, then how does making the law enforceable affect the influence of international law?

I cut into this very big question by focusing on a new set of institutions that were designed to address the enforceability gap in international law.  The comments in this symposium push upon a number of choices I made as I then tried to make the project tractable.

My first choice was to focus on the universe of permanent international courts, co-opting the definition of an IC created by the Project on International Courts and Tribunals (PICT). Alford’s commentary openly worries that others will follow me in focusing on PICT courts.

I share this concern, which is why I discuss the limits of relying on PICT’s definition (p.70-77). For me, the most arbitrary part of the definition is its focus on permanent ICs. I decided to nonetheless catalogue permanent ICs because sticking to a plausible definition ensured that I was examining like institutions.

Another related question I sometimes get is why I include ICs that exist but have no cases. This is where the benefits of PICT’s definition arise.  We can see from my universe that permanence is neither necessary nor sufficient for IC effectiveness, and we can start to examine why like institutions have varied impact.  This is a topic that Laurence Helfer and I have pursued through our in depth research on the Andean Court and on Africa’s ICs.

I am already moving beyond PICT’s definition, as should we all. The New Terrain of International Law demonstrates the arbitrariness of focusing on permanent ICs by including as case-studies non-permanent bodies. The NAFTA case study, for example, discusses how the “permanent” WTO system proved no more able than the NAFTA system to address complaints about illegal US countervailing duties. The Chapter 5 discussion of the ICJ’s role in the Bahrain-Qatar dispute, and the same court’s ineffectiveness in resolving US-Iranian disputes, shows again that being a permanent IC, with preappointed judges and the jurisdiction to issue binding rulings, still does not necessarily improve IC effectiveness.

Another step in moving beyond PICT’s definition is that Chapter 1 of the new Oxford Handbook on International Adjudication, which I co-authored with the author of PICT’s definition, Cesare Romano, excludes permanence from the definition of “adjudicatory bodies.”

A second choice was to use structured case studies as the mode of investigating how the existence of an IC contributes (or not) to changes in state behavior in the direction indicated by the law.  Nico Krisch addresses indirectly my case-study choice in his reply on EJIL:Talk!

Krisch argues that the altered politics framework is under-attentive to time. Time is a key component of the altered politics framework, where I separate IC influence into three periods: 1) bargaining in the shadow of a court; 2) litigation politics; 3) leverage politics. Moreover, one compelling attraction of the case study method is that the analyst can use the variable of time to examine IC influence.  The discussion of the Bahrain-Qatar case begins with the colonial era, examines efforts to mediate the dispute, considers how the ICJ got involved and what the ICJ added to dispute settlement, and ends a few years after the ICJ’s ruling in the territorial dispute. The discussion of the WTO FSC case begins with the GATT dispute settlement system failing to resolve the issue, discusses how the addition of compulsory jurisdiction affected this ongoing dispute, and ends with Congress revising the US tax code in response to WTO authorized retaliatory sanctions.

But I take Krisch’s point, which is related to the issues raised in Putnam’s and Cogan’s commentaries. I am trying to figure out how the existence of an IC mattered before, during and after the case at hand is litigated.  But there is an even longer duration question that begins before the IC is created, and before a state consents to the IC’s jurisdiction. And there is also the longer question of what IC influence will become over time, now that governments are beginning to understand the consequences of delegating authority to new-style ICs?

Tonya Putnam gently raises the endogeneity question. Maybe states consented to create an IC or to adjudicate a case because they already wanted to comply with international law, in which case litigation is incidental to a pre-existing state preference.  She hints at this issue by pointing out that much about why we have the IC in the first place is never explained in my book.

The one chapter where I do delve into this question of IC creation is Chapter 4 on World History and the Evolving International Judiciary, which is the focus of Cogan’s commentary. This chapter almost ended up on the cutting room floor because it is both too much (too long and unwieldy) and too little. My only solace is that right now it is one of the few efforts of its kind.

Putnam identifies one huge flaw: I don’t really consider ICs that were proposed but not created, nor do I explore potential alternative explanations of IC creation or state assent. Suzanne Katzenstein and I discuss this issue in an Opinio Juris discussion of her recent article.

I also never really address whether and at what point IC proliferation is a good thing. Let me answer this head on.  I don’t think that proliferation in and of itself is a good thing.   Nor do I believe that more IC adjudication, broader IC jurisdictional reach, and wider IC access rules are evidence of positive evolution.

Although I don’t lose a lot of sleep worrying about the potential of ICs to contribute to the fragmentation of international law, I think that Africa has more ICs than it can afford to sustain. I think that regional human rights courts are a much better approach than a world human rights court, because I believe it that there can be reasonable variation in human rights standards by region. Yet I seriously worry about cynical IC proliferation, where a goal of creating a new IC may be to undermine or circumvent existing ICs.  For example, I worry that Vladimir Putin will create his own CIS human rights court and then orchestrate an exit from the Council of Europe system as part of creating a “larger Russia.”

So no—more is not better. The conclusion of the book calls for a serious discussion about the conditions under which delegation to ICs is a good strategy. We should also question at what point we have enough ICs, and whether some consolidation might make good sense (something which is being discussed in Africa).

I will stop this reply here, but in my EJIL: Talk! reply I will address Krisch’s challenge to my heuristic of dividing up the functional roles ICs play, which also returns to Alford’s critique of my decision to discuss ICSID under the rubric of administrative review.

I want to end by thanking An Hertogen and Sadie Blanchard for organizing this joint symposium, and Opinio Juris and EJIL: Talk! for hosting and coordinating.  It is the very first written feedback I am receiving on the book. Thanks again to Tonya Putnam, Roger Alford, Jacob Katz Cogan and Nico Krisch for their thoughtful engagement with my book!