Vol. 24 No. 12 (December 2014) 542-546
THE NEW TERRAIN OF INTERNATIONAL LAW: COURTS, POLITICS, RIGHTS, by Karen J. Alter. Princeton, NJ: Princeton University Press. 2014. 450 pp. Paperback $35.00, ISBN: 9780691154756. Hardcover $95.00, ISBN: 9780691154749.
Reviewed by Edward Gordon, Honorary Vice President, American Branch, International Law Association. Email: firstname.lastname@example.org.
The premise of Karen Alter’s new book is that the creation of some two-dozen international courts (ICs) since the end of the Cold War has given ICs an influence in international and domestic politics not enjoyed by their predecessors. She seeks to explain how and why this change has come about, why ICs today are better able to imbed international law in domestic legal orders, and how international law itself has become a different kind of resource, one that is able to mobilize a transnational constituency to tap into the potential strength of previously unempowered actors, acting outside the scope of electoral politics and diplomacy, whose interests are advanced by constraining states and promoting the rule of law, irrespective of the intent of states, individually or collectively.
The book is organized into three parts. The first presents an historical overview of the evolution of ICs, separating its phases into three “critical junctures”: the Hague Peace Conferences of 1899 and 1907 (where the idea of a permanent international court was discussed for the first time at a diplomatic level); the end of World War II; and the end of the Cold War.
The second part is designed to facilitate development of a structure of analysis, by showing that the roles ICs play provide a key to their most effective use. Each of the four chapters in this section of the book is devoted to one of the four categories into which Alter divides these roles: i.e., dispute settlement, administrative review, enforcement, and constitutional review.
In the book’s final section Professor Alter deals with what she terms “the globalization of judicial politics and the judicialization of international politics” (p. 335). “Judicialization occurs where citizens, organizations, and firms see law as conferring upon them rights,” she writes, “and where politicians conceive of their policy and legislative options as bounded by what is legally allowed” (id). A key question explored here, but that runs throughout the book, as well, is why in the post-Cold War period states have become more willing to create judicial institutions that are likely to impose limits on their sovereign prerogatives.
Alter concedes that the historical survey she presents constitutes something of a “whirlwind” account. Experience drawn principally from just two decades of institutional life, after all, can hardly produce a database large, inclusive or representative enough to justify more than tentative conclusions about institutional patterns, let alone to infer inherent qualities of the kind Alter imputes to them. She anticipates this criticism by saying that enough has already happened to justify preliminary inferences and to begin to devise a structure of investigation, explanation and prediction of future trends and consequences, as well as by acknowledging that her goal here is simply to help to develop such a structure, not to present a fully developed one herself.
This circumspection is not immediately evident, though, in the importance she attaches to the four categories of roles she sees IC playing. To be sure, Alter herself has not invented this taxonomy. As she notes, it has been a recurring feature of the work of the Project on International Courts and Tribunals, for example. And she does employ it effectively here to dismantle positions maintained by some rational choice scholars that the only legitimate purpose of international litigation is to resolve disputes between nations, that the one true measure of the effectiveness of IC rulings is simply whether states actually comply with them, and that ICs do little to change state interests, much less to substitute the authority of law for them. Alter sees this analysis as severely flawed, not least by its assumption that states are unified actors and that state interests are univocal and immutable. Her multilateral politics model, in contrast, evaluates the effectiveness of IC rulings in terms of the extent to which they lead to changes in state behavior in the direction indicated by the law and the rulings themselves – including changes that are the result of the rulings, even if not wholly compliant with them. The world of law encapsulates a multidimensional policy space, she writes, “where there are many different state interests, some of which are compatible with the law and some of which are not” (p. 47). State actors affected by law are scattered all over the policy continuum, and both their interests and those of non-state actors who invoke international commitments with a view to influencing states’ behavior migrate with the passage of time. Measuring the effectiveness of IC rulings according to who is strutting at the moment they are issued, perforce, is frequently misleading (p. 52).
In truth, the comply-or-defy model has never enjoyed more than momentary and superficial vindication. President Jefferson’s initial defiance of the Supreme Court’s decision in MARBURY V. MADISON (1803), for example, is altogether misleading as an evaluation of the case’s long-term significance in shaping the scope of judicial review. So, too, is attaching too much importance to Iran’s defiance of the ICJ’s consideration of the legality of the takeover of the U.S. Embassy in Tehran by revolutionary forces in 1979. In bringing the suit against Iran, the State Department’s lawyers had not only anticipated that Iran would be unwilling to participate, they may have counted on it, correctly calculating that in openly defying the World Court, Iran would inadvertently help transform a popular image of the dispute from one in which a state in the midst of a populist revolution was thumbing its nose at an imperialistic world power into one in which the object of scorn was the world community itself.
Coincidentally, that case advanced another policy objective which comply-defy thinking has trouble accommodating. It provided national courts in London and Paris with an excuse to procrastinate in dealing with suits Iran had brought to recover billions of dollars of funds from its accounts in overseas branches of U.S. banks. [*543] The banks claimed they were barred from transferring the funds to Iran by virtue of a freeze order imposed by the Carter Administration, and by the latter’s insistence that the order extended extraterritorially to overseas branches of U.S. banks. This assertion was by no means certain of endorsement by British or French courts. But so long as the legality of Iran’s seizure of the U.S. Embassy was before the World Court, British and French national courts could, and did, credibly defer acting on Iran’s petitions. Not coincidentally, one effect of the delay was to add economic leverage to the incoming Reagan Administration’s behind-the-scenes negotiations with Iran to reach an overall settlement to the crisis.
But in disencumbering rational choice thinking of its protective attire, NEW TERRAIN’S emphasis on the role ICs are playing at any given time all but ignores the extent to which, in practice, these roles frequently overlap or dissolve into one another. The chapter dealing with the dispute settlement function does note how ephemeral the differences are between dispute settlement and law enforcement. It takes note, for example, of how the initiation of litigation by private parties can transform dispute settlement into law enforcement. But virtually all of the seemingly distinct roles IC play evolve in this or some analogous way, if only because the four categories themselves are not set at parallel levels of abstraction, and because as often as not the role being played by an IC at any given point is as much a consequence of the ingenuity of counsel and judges as of any inherent characteristics the ICs themselves possess.
Alter evidently feels otherwise, contending, for example, that ICs have inherent characteristics, manifest in their constituent instruments, and that these instruments provide a critical base line in indicating the role(s) governments expect them to play. The assignment of roles in these instruments is straightforward, she says; “either they’ve been assigned one or more of these roles or they have not” (p. 80). I doubt that most lawyers or judges would agree. Whether located in treaties, intra-organizational agreements, national constitutions or legislation, constitutive instruments are ambiguous even when they have been drafted by a small number of culturally homogeneous individuals whose professional inclination is to say precisely what they mean (as is often true with contracts between private parties, for example). They are even less reliable as an indication of specific intent when they and those who negotiate their specific terms are products of different cultural environments and are inextricably immersed in international politics throughout the drafting process. In any event, it would be difficult to produce empirical evidence to support the contention that these instruments are decisive once the institutions they establish come into existence. As Judge Alejandro Alvarez observed in one of the first judgments issued by the ICJ in 1948 (CONDITIONS OF ADMISSION), “an institution, once established, acquires a life of its own, independent of the elements which have given birth to it, and it must develop, not in accordance with the views of those who created it, but in accordance with the requirements of international life.” [*544]
The chapter that examines the role ICs play in administrative review sees this function growing in importance, a trend that accords Alter an opportunity to zero in on the question of why states have become more willing than they used to be to empower ICs to reach decisions that are likely to impinge upon what might otherwise be regarded as their (the states’ own) sovereign prerogatives. But she looks as well at where they have avoided doing so – for instance, by creating or denying private litigants the right to seek annulment of administrative actions that violate international law. The chapter dealing with how ICs enforce international law leads the reader to understand that ICs originally limited themselves to ruling on legal disputes between states, and have only comparatively recently begun to enforce international law. The chapter dealing with international constitutional review concerns the authority ICs have been accorded to invalidate laws or government actions when these conflict with binding rules of a higher standing of one kind or another.
The question of why states have accorded ICs more authority than they did in the past does not lend itself to easy answers. Alter offers a persuasive starting point by attributing it in part to the internationalization of legal practice itself, a critical development occasioned by, among other factors, expansion in the transnational character of economic activity, a corresponding increase in the substantive reach of international law, the growing popularity of the idea that norms espousing human dignity are more than abstractions, and the integration of international legal norms into domestic law. One effect of internationalization, she observes, has been to demonstrate that national courts are not up to the task of resolving the conflicting claims to which international law gives rise, much less to secure systemic oversight. “Delegation to [ICs] is inspired by a distrust of governments” and “a belief that the rule of law is enhanced when individuals, including elected officials, are not judges in their own causes and that domestic checks and balances are also insufficient to ensure that governments keep their international covenants” (p. 112).
The political integration of Western Europe has also encouraged the allocation of authority to ICs, as role models, by demonstrating the benefits of international adjudication through the work of judicial institutions like the European Court of Justice (ECJ) and the European Court of Human Rights. By way of illustration, Alter looks at the ECJ’s review of corporate mergers that are alleged to violate European Community anti-competition laws; the Andean Tribunal of Justice’s review of trademark infringement; and the North American Free Trade Association (NAFTA) and World Trade Organization (WTO rulings applying anti-dumping laws). These are among some eighteen case studies Alter uses to advantage throughout NEW TERRAIN to show how ICs are shaping international relations.
She attaches special importance to two characteristics today’s ICs possess that their predecessors lacked: namely, compulsory jurisdiction and the ability of non-state actors to initiate legal review. When non-state litigants and advocacy groups use litigation as a political strategy to promote their own objectives, she observes, ICs are [*545] endowed with ready-made compliance constituencies who work to see their rulings implemented. Non-state actors now generate the lion’s share of IC rulings, so the influence of these constituencies is growing, rendering ICs less dependent on governments than they used to be. “My main argument,” Alter says at one point, “is that ICs influence governments through alliances with compliance constituencies, ever-changing groups of domestic and international actors that actively or tacitly support compliance with international law and IC rulings” (p. 53).
She deals gingerly – which is to say tactfully – with the tendency of today’s ICs to adopt common procedural and attitudinal approaches to the otherwise distinct substantive issues with which they are presented. By doing so, of course, they help promote stability and predictability, and reduce the risk of fragmentation of the norms of international law that might otherwise result from a proliferation of institutions charged with interpreting and applying them. But one consequence has been to empower a small class of specialists who accumulate experience and expertise not just in relevant procedures, or for that matter with formal and informal codes of decision determinants, but also in the pithier form of being on a first-name acquaintance with the coterie of lawyers in foreign offices and international organizations for whom an international judgeship has become, in the felicitous phrase used by another group of scholars, “a natural part of career progression” (Mackenzie et al., p. 58). Alter asks whether endowing such a self-selected, unelected professional elite with political power reinforces or undermines democracy in international decision-making. Authority to interpret and apply the norms and obligations imposed by international law should be seen as a political tool, she argues, serving political objectives, rather than as an engine of legalist ideology. To this one might add that it should also reflect a global perspective, not merely a statist one that too often relegates the interests of the world community to those of national governments powerful and deep-pocketed enough to continually manipulate the system.
Conditions of Admission of a State to Membership in the United Nations, Advisory Opinion, 1948 I.C.J. 57 (Separate Opinion, Judge Alvarez). Cited in Edward Gordon, “The ICJ: On its Own,” in PERSPECTIVES ON INTERNATIONAL LAW IN AN ERA OF CHANGE (Alissa Mundt and Anjali Nanda, eds.) 2012.
Mackenzie, Ruth, Kate Malleson, Penny Martin and Philippe Sands. 2010. SELECTING INTERNATIONAL JUDGES: PRINCIPLES, PROCESS, AND POLITICS. Oxford: Oxford University Press.
Case Concerning Unites States Diplomatic and Consular Staff in Tehran, 1980 I.C.J. Rep. 21; 1979 I.C.J. Rep. 3.
MARBURY V. MADISON, 5 U.S. 137 (1803)
© Copyright 2014 by the author, Edward Gordon.