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Jus Post Bellum Symposium: A Normative Critique of Jus Post Bellum in International Law

by Eric de Brabandere

[Eric De Brabandere is Associate Professor of International Law at the Grotius Centre for International Legal Studies and a Member of the Brussels Bar.]

My contribution to Jus Post Bellum: Mapping the Normative Foundations, edited by my colleagues Carsten Stahn, Jennifer Easterday and Jens Iverson critically examines the usefulness and accuracy of jus post bellum (JPB) as a legal concept and argues that the concept presents either a challenge to the objectivity of the post-conflict phase or simply brings together already existing obligations. It also questions the oft-heard underlying assertions and assumptions of JPB theories, namely that there is a legal void to which the concept would (need to) respond by filling the ‘blind spots’, and that post-conflict reconstruction does not function because of a lack of effective implementation of existing law applicable in such situations which requires recourse to a ‘new’ concept. Indeed, and although this is not always clear in JPB discussions, the concept has an important normative agenda – namely that the current regulation of post-conflict situations is inadequate and should as a consequence be modified. This –often latent and also vague in terms of which norms should be added- normative agenda of course is necessary for JPB scholars, since the absence of normative propositions restricts JPB to a pure umbrella concept which in turn makes the whole idea legally useless. I have expressed my criticism in this respect previously (in the Vand. J. Transnat’l L. and the Belgian Review of International Law). I will therefore focus in this post primarily on the recent idea of seeing JPB as an interpretative framework.

JPB as an interpretative framework is developed in detail by James Gallen in this contribution to the volume, but also is present in the chapters by Dieter Fleck and Christine Bell. The main idea behind this theory is to view JPB as a normative set of principles rather than substantive rules which would give guidance in the application of the existing rules governing post-conflict reconstruction. This understanding of JPB is considered to be important because of the need to interpret uniformly the various norms, rules and practices applicable in post-conflict reconstruction. Under such an understanding of JPB, the alleged ‘legal void’ somewhat becomes irrelevant, since the objective is not to add new rules, but rather to use existing principles and where possible interpret these rules in function of the identified overarching principles. It essentially functions to ‘solve’ the second main ‘problem’ of post-conflict reconstruction namely the lack of effective implementation of international law in such situations.

Even if one perceives JPB as an interpretative framework, grouping principles that are already of application in post-conflict situations –which undoubtedly is the case for the principles discussed- under a new notion, makes the question of the usefulness of jus post bellum persist. At the same time, this may be the only viable avenue for JPB. Roughly three principles are usually considered to part of this ‘interpretative legal framework’: the principle of proportionality, the accountability of foreign actors, and the principle that post-conflict reconstruction efforts should be for the benefit of the population (trusteeship, fiduciary type of authority, or stewardship). These principles are discussed in total or in part in the contributions of Gallen, Bell and Fleck in the JPB volume, but also elsewhere. Although these principles have been used in the context of the substantive content of JPB as well (when it is used a normative framework) the difference in their use here is the fact that the objective is not necessarily to ‘create’ new substantive rules applicable to post-conflict reconstruction -e.g. by ‘imposing’ trusteeship in all aspects of post-conflict situations-, but rather to use these principles to interpret the existing legal norms applicable in post-conflict reconstruction. They would then function as overarching principles which may guide foreign actors involved in post-conflict reconstruction to interpret their mandate, either under the laws of occupation or under Security Council resolutions, and the general obligations they have under, for example, human rights law, the laws of armed conflict and refugee law.

The main problem here again is that the identified principles (proportionality; trusteeship, and accountability) in fact are already very much present in general international law. This is without doubt the case for proportionality –a general principle of international law-, but also for the trusteeship principle -that post-conflict reconstruction efforts should be for the benefit of the population which is inherent in the laws of occupation, and in case of action taken by the Security Council-. The principle of ‘accountability’ also is already very much present in general international law and in the areas of law which are of specific relevance in post-conflict settings.

Secondly, these ‘principles’ vary substantially in nature and legal force. ‘Proportionality’ is a general principle of international law, applicable in various situations including in jus ad bellum, jus in bello and certain aspects of JPB. ‘Accountability’ on the other hand constitutes an ‘objective’ within a legal system. It has no or little legal force. ‘Trusteeship’ also is very different in nature in that it applies to situations of occupation, and implicitly to Security Council mandated missions, but the relevance of the concept outside these situations is almost inexistent. These principles, admittedly, indeed may serve to guide foreign actors involved in post-conflict reconstruction, for instance, in terms of setting up adequate mechanisms to challenge acts taken by these actors or in interpreting their mandate. The question very much is whether this is not already the case. Proportionality, fiduciary authority and accountability are either directly or indirectly already part of the applicable norms in post-conflict settings. The question thus remains whether, even in such a minimalist conception of JPB, it really is useful to group existing principles in the new concept. If, on the contrary the objective is more normative, e.g., to impose these existing principles on situations not already covered by these –which is not entirely clear and would in any event have a very limited effect-, the question remains how this would operate.

http://opiniojuris.org/2014/05/05/jus-post-bellum-symposium-normative-critique-jus-post-bellum-international-law/
This entry was posted in Book Discussions, Featured Posts, Human Rights, Law of War and tagged .

Jus Post Bellum Symposium: What’s in a Name? The Great Definitional Debate over Jus Post Bellum

by Kristen Boon

Carsten Stahn, Jennifer Easterday, and Jens Iverson’s new edited collection Jus Post Bellum: Mapping the Normative Foundations is a terrific contribution to the Jus Post Bellum field. The 26 chapters (one authored by myself) address a range of central issues, including interrogating the structure, content, and scope of the three separate pillars of jus / post / bellum. While the contributing authors reveal some fundamentally different and even opposing views on the essential building blocks of the enterprise, this discord is a sign of the area’s salience. The chapters in this volume indicate that the ongoing inquiry into the principles that should apply after war continues to be an issue area of great interest to practitioners, policy makers and scholars of various disciplines.

Interest in the topic is illustrated by the graph on p. 544 of the book, which indicates the “rock star” status of the concept. Before 2002, there were virtually no references to jus post bellum in the literature. Since 2007, however, references to jus post bellum have jumped off the chart, indicating a growing concentration of scholarship that tranches the disciplines of law, political science, international relations, theology and philosophy. As someone who writes in the field, I see the following as key pillars of jus post bellum investigation: (i) the recognition that building a sustainable peace is important to stopping cycles of conflict; (ii) the UN’s regular engagement in post-conflict reconstruction (raising practical questions about what types of post-conflict activities are important, and what laws should inform and limit IO activities), and (iii) exploring how the jus post bellum principles relate to, add and alter our existing legal framework, particularly with regards to humanitarian law and doctrines like the Responsibility to Protect.

At the meta-level, there are polarized views on the definition of jus post bellum, and more centrally, the utility and enforceability of a jus post bellum framework. Some scholars see that disagreement as a source of potentially useful debate (see in particular, chapters by Vatanparast, Easterday and Bell), while others focus on the conceptual unclarity that flows from these differences of views, emphasizing the limitations from a gender perspective (Hi Aolain an Haynes), the importance of clarifying the relationship with existing bodies of legal doctrines (Fox), and the potential for politicization (Vatanparast).

I note, with some irony, that some of my own work on the subject, all of which is less than 10 years old, appears to be classified as a product of the “old guard” (Introduction at 4), in that I have advocated a restrictive definition of jus post bellum and the norms that might apply in conflict situations. For example, in a 2005 article available here I define jus post bellum as the justice of post-war settlements and reconstruction, and I focus exclusively on non-consensual interventions. Others in the volume, in contrast, argue for interpretive and functional definitions, which are classified as newer approaches to the field. While these approaches certainly merit exploration, I continue to defend, and see greater value in a narrow but deep definition of jus post bellum. One reason is that to the extent that jus post bellum can and will serve a regulatory function, perhaps one day even evolving into a new Geneva Convention, there needs to be practical guidance, on concrete issues, drawn from identified cases. There is a necessary and critical reflective process that is required to getting to those regulations. My approach doesn’t suggest that philosophical inquiries should be short-circuited or curtailed, or that there isn’t value in the dialogue. However, in my view, there are considerable benefits in moving the conversation towards concrete proposals that could have a daily impact on actors in the field, such as the UN. I believe this is most effectively done when we consider jus post bellum as set of legal principles that apply in the transition from conflict to peace, as opposed to a site for exploration.

Another reason I believe a narrow approach is preferable is that there may be greater legitimacy in a narrow set of accepted principles than broad and prescriptive tools that miss the nuances of particular situations. Indeed, a relevant analogy here might be the ILC’s 2011 Draft Articles on the Responsibility of International Organizations (RIO), which, many have argued, would have been more relevant if they were less ambitious. I outline some of the controversies over the RIO articles here. For example, if the ILC had taken on a few issues in areas where there was developing practice and a perceived need for common regulation, it may have resulted a set of proposed Articles with more buy-in from IOs. As it stands, the decision to tackle the wide range of topics developed in the context of State Responsibility, and try to apply them to all IOs writ large, left many feeling that insufficient attention was given to the fundamental differences amongst IOs.

My chapter in this book, titled Jus Post Bellum in Non-International Armed Conflicts, addresses the applicability of jus post bellum to Non-International Armed Conflict Situations (NIACs). Because internal conflicts are regulated by fewer norms than international conflicts, NIACs, which are statistically the most frequent forms of conflict today, raises the following question: should the scope of Jus Post Bellum be different for NIACs? I argue for a “bounded discretion” approach, which would uphold the applicability of universal values that are derived from human rights, international criminal law and international humanitarian law, while instilling deference to local law-makers on issues of rebuilding, reconstruction, and constitutional design. I use the examples of margin of appreciation and the doctrine of subsidiarity to support this approach, to show how multi-level governance theories are relevant to jus post bellum. I argue that in applying jus post bellum, there should be a preference for governance at the most local level, unless the norms are non-negotiable, such as those derived from human rights. The editors of the book have recently applied this concept to justify a principled deviation from peacetime standards.

A final reflection on the scope of jus post bellum comes from a related body of work I am engaged in on UN sanctions. In assessing the Security Council’s peacebuilding activities through the guise of sanctions, I have been struck by the extent to which the Security Council is an important player in the jus post bellum field. Although the Council’s actions are discretionary, sometimes inconsistent, and are not applied in a regular way to like-cases, the Council has, nonetheless, been involved in some way, with almost every most major international conflicts in the last 20 years, save perhaps, Sri Lanka and Myanmar. Indeed, under the so-called sanctions for peace in Liberia and Cote d’Ivoire, the Council has brought about considerable transitions which fall within the jus post bellum framework, by, for example, mandating free and fair elections, an end to the incitement of violence and intolerance, management of natural resources, changes to the government’s administrative infrastructure, and cooperation with international courts and tribunals. I thus agree with Dieter Fleck’s observation on p. 62 that Security Council resolutions alone are not sufficient to create a jus post bellum framework, but there is no question that they provide distinctive areas to evaluate and should not be overlooked. Moreover, the Council’s references to peace agreements in sanctions resolutions, and its role in authoring and enforcing international norms, signifies its significant engagement in and influence over peace building and the jus post bellum. Stay tuned for a future post on this issue, which draws from an article I am writing on the topic.

I have little doubt this book will soon become essential reading for those interested in jus post bellum: it contains an incisive set of analyses on a range of important topics, and makes great inroads in continuing to map the field of jus post bellum. I am grateful both for the opportunity to have contributed to the volume, and for the chance to wear my other hat as an Opinio Juris blogger, to reflect on one of the central issues I saw emerging from the volume: the definition of jus post bellum.

http://opiniojuris.org/2014/05/05/jus-post-bellum-symposium-whats-name-great-definitional-debate-jus-post-bellum/
This entry was posted in Book Discussions, Featured Posts, Human Rights, Law of War and tagged .

Book Symposium: Jus Post Bellum–Mapping the Normative Foundations

by Jens Iverson

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies, Universiteit Leiden. Jennifer S. Easterday is a Researcher for the ‘Jus Post Bellum’ project at the Universiteit Leiden and an international justice consultant. Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.]

As editors of Jus Post Bellum: Mapping the Normative Foundations, we are delighted and honored to be able to present the ongoing jus post bellum debate in this Opinio Juris symposium. The book was written as part of a four-year research project on jus post bellum. The concept is steadily gaining ground in emerging scholarship, and we hope the fantastic contributions to this symposium will push that scholarship even further. We are grateful to the contributors to the symposium, to those who post responses, and to the readers.

The basic idea of jus post bellum emerged in classical writings (e.g., Alberico GentiliFrancisco SuarezImmanuel Kant) and has its most traditional and systemic rooting in just war theory. In this context, it is part of a structural framework to evaluate the morality of warfare, and in particular the ‘right way to end a war’, including ‘post-war-justice’ (Michael WalzerBrian Orend). Outside just war theory, jus post bellum is largely unexplored. The notion was used sporadically in different contexts over the past decade: peacebuilding and post-conflict reconstruction, transformative occupation,transitional justice, and the law of peace (lex pacificatoria) more generally. But the concept has lacked consistency; there are almost as many conceptions of jus post bellum as scholars, within and across disciplines.

In order to study the concept, we broke it down into its constituent parts: juspost, and bellum. Authors in the book—many of whom have contributed to this symposium—grappled with questions as diverse as the normative and moral meanings of justice, the intricacies of time and transition; and the very conception of armed conflict. Our main conclusion from the book is that it is helpful to think about jus post bellum in three different ways.

First, Jus post bellum may be said to form a body of norms and principles applicable to transitions from conflict to peace. It provides, in particular, substantive norms and guidance for the organization of post-conflict peace. But more law and abstract regulation do not necessarily suffice to address tensions arising in the aftermath of conflict. There may a greater need for a better application of the existing law, and its adjustment to context, rather than the articulation of new norms and standards. There may be promise in strengthening informal mechanisms and flexible principles.

A second and more ‘modest’ conception of jus post bellum is its qualification as a ‘framework.’ This conception emphasizes the functionality of jus post bellum, such as its capacity to serve an instrument to evaluate action (e.g., legitimate ending of conflict) and to establish a public context for debate. Jus post bellum might be construed as an ‘ordering framework,’ or as a tool to coordinate the application of laws, solve conflicts of norms, and balance conflicting interests.

Thirdly, jus post bellum may constitute an interpretative device. The concept might inform a context-specific interpretation of certain normative concepts, such as ‘military necessity’ or the principle of proportionality. It might, for instance introduce a novel end in relation to the conduct of hostilities, namely the objective not to defeat the goal of sustainable peace through the conduct of warfare.

Like many legal concepts, jus post bellum is not without contestation. But this is not necessarily a weakness. We conclude the book with a SWOT analysis: Strengths, Weaknesses, Opportunities, and Threats. We argue that some of merit of the concept lies in dialogue and contest with other concepts, such as Transitional Justice, the law of peace or the Responsibility to Protect.

We have tried to capture the essence of that dialogue in this symposium. We are delighted to have several authors from the book, as well as additional distinguished guests, join us in the on-going debate about the contours and merit of jus post bellum. Over the course of the next several days, they will engage with issues including: on Monday, useful definitions for jus post bellum; on Tuesday, its relationship to other related concepts; on Wednesday, peace agreements, constitutions, and environmental concerns; on Thursday, sovereignty and multilateralism; and on Friday, post-conflict responsibility. We hope that your find their contributions, and the discussion, as fascinating and thought provoking as we have.

http://opiniojuris.org/2014/05/05/book-symposium-jus-post-bellum-mapping-normative-foundations/
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Weekend Roundup: April 26-May 2, 2014

by An Hertogen

This week on Opinio Juris, Duncan posted an abstract to a book chapter arguing that IHL should adopt a duty to hack. He also argued that reports of the death of treaties are greatly exaggerated.

Peter marked May Day with a post on global consciousness of the non-elites; Kevin argued that the PTC II is not treating defence attorneys fairly; Julian wrote about Florida’s narrow ban on foreign law; and Ryan Scoville contributed a guest post on de jure and de facto recognition as a framework for Zivotofsky.

Finally, Jessica wrapped up the news and listed events and announcements. Kristen also publicized the call for this year’s ASIL Mid-Year Research Forum.

Have a nice weekend!

http://opiniojuris.org/2014/05/03/weekend-roundup-april-26-may-2-2014/
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Weekly News Wrap: Monday, April 28, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Asia

  • The US has signed a new 10-year defense agreement with the Philippines.
  • India successfully test-fired an anti-ballistic missile on Sunday capable of intercepting targets outside the earth’s atmosphere, a major step in development of a missile defense system that is available to only a handful of nations.

Europe

Middle East and Northern Africa

Americas

UN/Other

http://opiniojuris.org/2014/04/28/weekly-news-wrap-monday-april-28-2014/
This entry was posted in Weekday News Wrap.

Weekend Roundup: April 19-25, 2014

by An Hertogen

This week on Opinio Juris, we teamed up with EJIL:Talk! to bring you a transatlantic symposium on Karen Alter’s book The New Terrain of International LawYou can find Karen’s introduction to her book here, followed by comments by Tonya Putnam, Roger Alford and Jacob Katz Cogan. Karen’s reply is here.

Other guests this week were Paula Gaeta who explained why she is not convinced by the ICC’s latest decision on President al-Bashir’s immunity from arrest, and Mike Ramsay who discussed Argentina v. NML Capital and the FISA.

Deborah commented on Steve Vladeck’s essay on post-AUMF detention and posted a surreply to his response over at Just Security

Peter looked at Courts’ involvement in foreign affairs following the US Supreme Court’s decision to accept the Jerusalem passport case on the merits.

Julian explained why in his opinion the Marshall Islands’ US complaint and ICJ applications against the world’s nuclear powers is not going to get very far.

Kristen argued that if we want more effective multilateral sanctions, we should examine not just the design of sanction regimes, but also their termination.

Finally, Jessica wrapped up the news and I listed events and announcements. To all our junior readers out there, there is now less than a week to enter an abstract for our second Emerging Voices symposium.

Many thanks to our guest contributors and have a great weekend!

http://opiniojuris.org/2014/04/26/weekend-roundup-april-19-25-2014/
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Alter Book Symposium: Reply by Karen Alter

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.]

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! (more…)

http://opiniojuris.org/2014/04/25/alter-book-symposium-reply-karen-alter/

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. (more…)

http://opiniojuris.org/2014/04/24/alter-book-symposium-comment-jacob-katz-cogan/

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

by Roger Alford

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 opportunities for grafting new vines onto old roots. Alter steps back and examines world history from the perspective of new international courts and tribunals. It is a welcome addition.

Her book is a voice for the younger generation, who did not grow up studying international law “during the Cold War when power politics mattered more than law, and when most international legal institutions were virtual entities that barely met and rarely said anything of political or legal consequence.” (p. xix). A younger generation of scholars embraces the cornucopia of international tribunals in all their variety, and will soon treat international dispute resolution as a separate and distinct transubstantive body of international law. We are moving in that direction with the development of the emerging field of global administrative law. But future decades will witness a greater emphasis on procedural rather than substantive international law, and comparative international courts will be a new specialty. Today it is rare to take a course entitled “International Courts and Tribunals.” Today we do not compare across international courts questions such as jurisdiction, standing, evidence, judicial selection, remedies, and enforcement of judgments. Future generations will. The New Terrain of International Law is a major contribution in that direction.

Of course, there are problems with Alter’s book. Her choice of tribunals borrows from the Project on International Courts and Tribunals’ typology, which excludes international tribunals that are not permanent. She concedes that excluding temporary international tribunals is rather arbitrary, (p. 76), but nonetheless limits her typology to only twenty-four permanent international tribunals. Given the magnitude of the task set before her, this is understandable. But I fear that her work will continue an ill-advised trend of excluding tribunals that are not permanent. Rather than including permanency as a threshold requirement, it is far preferable to address it as a variable, similar to geographic reach or private initiation of disputes. Many temporary international courts are simply too important to ignore. Just as any historical analysis would never exclude the temporary tribunals such as the Jay Commission, the Alabama Commission, the PCIJ, or the Nuremberg or Tokyo Tribunals, one should never claim that a comprehensive study of modern courts and tribunals is complete without including tribunals such as the Iran-United States Claims Tribunal, the United Nations Compensation Commission, the Eritrea-Ethiopia Claims Commission, or the Special Court for Sierra Leone. Excluding such tribunals, but then including other temporary tribunals (the ICTY and the ICTR) as well as relatively insignificant permanent tribunals such as ECCIS, EFTAC, and WAEMU only underscores the arbitrary nature of PICT’s and Alter’s typology. Even her case studies belie the problem, for she studies several of the temporary tribunals in her case studies, but then she does not include those same tribunals in her typology.

As an expert on international investment arbitration, let me also address another fundamental mistake in the book. Alter identifies ICSID arbitral bodies as administrative tribunals. She justifies this because the “investor dispute system can give rise to costly litigation and awards, to the point that litigation threats by investors can have a chilling effect on the local regulatory politics.” (p. 202). She suggests that ICSID tribunals function in a “morphed and perhaps unintended administrative review role.” (p. 211). All of this is correct, but it is purely incidental. At their core investment tribunals are focused on the economic consequences of state action. In reality, ICSID tribunals function as international economic courts akin to the WTO. Like other international economic courts, the subject matter of investment arbitration is limited to economic issues such as trade, foreign investment regulation, contract disputes, intellectual property rights, and business law (p. 85). The basic template of an ICSID tribunal is distinct from both the WTO and ECJ models discussed in the book (p. 90), allowing private initiation of disputes before supranational courts without a preliminary ruling mechanism. But an ICSID tribunal is no more of an administrative review court than the ECJ or the WTO, which as she notes, also function as systems of administrative and constitutional review challenging community acts in front of supranational courts (p. 90). In my view it is better to categorize international tribunals based on their core objectives rather than their incidental effects.

Karen Alter deserves hearty congratulations for her excellent work. If you read the book, you will be introduced to an increasingly important field of international law. You will be ushered into the new world of comparative international courts.

http://opiniojuris.org/2014/04/23/alter-book-symposium-welcome-new-world-comparative-international-courts/

Alter Book Symposium: Comment by Tonya L. Putnam

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.

(more…)

http://opiniojuris.org/2014/04/23/alter-book-symposium-comment-tonya-l-putnam/

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. (more…)

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

Joint Opinio Juris-EJIL:Talk! Book Symposium this week

by An Hertogen

This week we are working with EJIL:Talk! to bring you a symposium on Karen Alter‘s (Northwestern) book The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press). Here is the abstract:

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. The New Terrain of International Law charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics.

The New Terrain of International Law presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, Karen Alter argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. Alter explains how this limited power–the power to speak the law–translates into political influence, and she considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

From our side, Tonya Lee Putnam (Columbia – Political Science) and Jacob Katz Cogan (Cincinatti – Law) will provide comments, followed by Karen’s response.

Across the Atlantic, comments will be provided by Antonios Tzanakopoulos (Oxford) and Nico Krisch (IBEI).

As always, we welcome readers’ comments!

http://opiniojuris.org/2014/04/22/joint-opinio-juris-ejiltalk-book-symposium-week/