HILJ Online Symposium: Hague Peace Conference Courts v. The Universe of International Courts

[Karen J. Alter is a Professor of Political Science and Law at Northwestern University. Alter’s most recent book is The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014).]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Suzanne Katzenstein’s article is a very welcome systematic investigation of the Hague era and post-Cold War proposals to generate international courts (“ICs”). Katzenstein puts her finger on a serious problem in the literature on international courts. Scholars are biased towards success, since it is hard to build a career by focusing on what does not exist for most to see. Katzenstein is correct in pointing out the limitations of our scholarly biases. Indeed the only way to understand what leads to IC creation is to give equal weight to both successful and unsuccessful efforts.

Researching abandoned initiatives, however, is not so easy to do. One can find references to publicly voiced ideas and formed proposals that fail, but these references tend to be brief and anecdotal. Moreover, many ideas are voiced but then abandoned, leaving not even a paper trail. The dearth of deep secondary literatures regarding failed initiatives makes it is extremely hard to construct a universe of cases, let alone develop and test arguments that might explain why some proposals are abandoned.

During what I call the Hague Peace Talk era, however, proponents developed a grand vision for a network of international courts. Katzenstein thus has a period of time in which she can investigate abandoned and successful endeavors, side by side. She then traces what happened to these initiatives over time. Her analysis deftly summarizes this landscape of successful and failed global initiatives across the twentieth century. I especially appreciate this article’s many tables that really help us see patterns as well as what became of various proposals.

But Katzenstein is able to consider this longer time frame because the Hague era involved a larger vision of a network of courts, and because in the 1950’s debates about IC creation had mostly migrated to regional settings. Her choice to exclude regional courts is the only way to make the project tractable. But the choice also introduces some limitations.

The Project on International Courts and Tribunals used a different definition of international courts, one that was updated in Oxford’s new Handbook on International Adjudication. Chapter one defines and maps the universe in international courts according to the following definition: ICs are 1) bodies of intergovernmental organizations that 2) hear cases where one of the party is or could be a state. They are 3) composed of independent adjudicators who 4) decide questions brought before them on the basis of international law 5) following predetermined rules of procedure and 6) issue binding rulings. This definition generates a universe of international courts that is much broader than what Katzenstein considers.

It is perhaps ironic that we know the most about regional ICs and the World Trade Organization (“WTO”) because scholars have been so biased towards success. Indeed most of our theories about IC operation and effectiveness are based on studying Europe’s very successful ICs, WTO dispute adjudication and more recently Latin American ICs. Yet none of these ICs figure into Katzenstein’s analysis.

Less known is how regional strategies are themselves artifacts of the failed global vision. Indeed the lack of support for the ICs Katzenstein studies are a big reason why today’s most active and successful ICs are not part of Katzenstein’s analysis.

Katzenstein is correct in her object of study in that the big bang of IC genesis began with the Hague Peace Conferences and the proposals to generate ICs that Katzenstein is studying. But already in the inter-war years legal diplomats had begun to sour on the idea of global courts. The demands of Americans and Russians during the interwar years had led to compromises that upset European advocates. Then, by the 1950’s the Cold War was in full swing. Soviet Bloc countries refused to join UN initiatives proposed by the West, and the US Congress was increasingly hostile to international endeavors. To defeat the Bricker Amendment, John Foster Dulles promised not to submit human rights treaties to the Senate for ratification.

The anti-internationalist Congressional sentiment spilled beyond human rights treaties. For example, rather than to fight opposition in the Senate, President Truman abandoned the Havana Charter to create an International Trade Organization, which 53 countries including the United States had negotiated and signed.

Another issue beyond the scope of Katzenstein’s analysis is whether diplomats chose to rely on the ICJ rather than an independent IC. I have not researched the negotiating history of the Havana charter, and I wonder how much information actually exists. But it would not surprise me if the post WWII rejection of the Hague vision led International Trade Organization negotiators to chose the ICJ as the dispute settlement body rather than propose a new global trade court. Meanwhile, because the Havana Charter envisioned disputes being adjudicated by the ICJ, the proposal’s defeat is not discussed in Katzenstein’s article.

To provide the sort of full treatment of her question that I am suggesting, one that includes regional efforts and the decision to designate the ICJ rather than create an IC, is surely a huge task. It is too big for one article, and probably too big for one scholar. But the search for a comprehensive explanation involves considering the range of options that are on the table, and not just the up or down decision regarding whether or not to create an IC.

International relations scholars have studied the choice for creating new or using existing institutions without all that much success. More successful has been our effort to explore the relationship between various issue areas, and overlapping global, and regional regimes, which we call international regime complexity. This burgeoning literature recognizes that developments in parallel domains reverberate beyond the single institution itself.

How does this reality of international regime complexity affect Katzenstein’s analysis? One example is that pressure for a global human rights court deflected to Western Europe, Latin America and Africa. These regional solutions may well have dissipated demand for a global human rights court, but it has also left Asia and the Middle East without regional human rights alternatives and powerful hegemonic allies. This reality clearly affects politics within global human rights institutions.

Another example of how international regime complexity matters is that the demise of the Havana Charter deflected political pressure towards the General Agreement on Tariffs and Trade (“GATT”). Because of the Cold War, the GATT became a trade regime of the industrialized North. This fateful decision had all sorts of downstream effects. The Cold War desire to support a prosperous interdependent Western Europe as a counter balance to the Soviet Union led GATT diplomats to create exceptions for regional trade regimes. This exception has contributed to the proliferation of regional economic agreements. Since negotiators expected the GATT to be superseded by the International Trade Organization, they never bothered to create a dispute settlement system. Today’s WTO dispute settlement mechanism reflects the ad hoc way that diplomats muddled through. Indeed had the Havana Charter succeeded, perhaps the ICJ would be busier or the limitations of the ICJ may have generated pressure to create a special global trade court.

These comments are not meant as a critique. You have to start somewhere, and by giving equal weight to success and failure Katzenstein has done us all a great service. Her study is indeed a vital starting point to more accurately investigate the causes that lead to IC creation and avoidance.

Katzenstein surveyed an entire class of like cases—proposals to create international courts with a global reach. Her panoramic view makes the absence of global human rights and trade courts seem all the more puzzling. Meanwhile the long Cold War hiatus between many proposals, some of which succeeded and others of which were abandoned, highlights the anomaly of the Cold War. Indeed it is curious that the Tribunal for the Law of the Sea and the International Criminal Court came so much later in time. I am suggesting that regional initiatives have absorbed some of the pressure to create global courts. But of course, we also need to examine the many failed regional initiatives to unlock the puzzle of IC creation over time.

Progress occurs through dialogue. Katzenstein’s analysis starts a dialogue through its omissions. I suggested some additional theories and cases to explore, which would be a way to build on the excellent start this article represents.