April 2014

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!

Alter Book Symposium: Comment 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.

Alter Book Symposium: Welcome to the New World of Comparative International Courts

Let me join others in heaping praise on Karen Alter’s new book. It marks a growing trend of studying international law from an institutional rather than substantive perspective. My favorite aspect of the book is the lateral thinking that occurs when one examines international tribunals across disciplines. International law scholars typically labor in their own vineyards, missing...

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.

Alter Book Symposium: The New Terrain of International Law

[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.