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The New Terrain of International Law: A Reply by Karen Alter

Published on April 25, 2014        Author: 

Thanks very much to Nico Krisch and Antonios Tzanakopoulos for their thoughtful commentaries on my book. I speak to some of Nico and Antonio’s comments in my separate response on Opinio Juris where I addresses limitations from my focus on international courts (IC) as defined by the Project on International Courts and Tribunals (PICT); how case studies allow me to use time to assess IC influence; how we need to stretch time further by exploring more IC creation; and the question of the causes and costs of the proliferation of ICs. This last discussion addresses directly whether or not I see the proliferation and expanding reach of ICs as inherently good.

In this reply I focus on Nico Krisch’s challenge to my role-based heuristic. On Opinio Juris, Roger Alford  also questions this judicial role heuristic. Their comments raise two rather different critiques. I then turn to Tzanakopoulos’ concern about hidden normativity in my analysis.

The New Terrain of International Law codes the legal instruments creating ICs (what I call Court Treaties) to establish a baseline of which ICs have been formally delegated a specific judicial role–administrative review, enforcement, constitutional review, and the catch-all category of dispute settlement. I then have four chapters that correspond to each role, which include eighteen case studies that stretch to about 100 binding legal rulings.

Krisch questions whether the roles are “the most helpful heuristic” for understanding political dynamics surrounding ICs. Alford argues administrative review is really “incidental” to the core role of adjudicating investment disputes and suggests that it might be better to focus on “core objectives,” which in the case of ICSID is “the economic consequences of state action.”

When I presented my role-based chapters in the course of writing the book, members of the audience also suggested that I should collapse the categories, because at the end of the day the only category that is both new and that matters is enforcement. And I have heard that I should instead focus on IC review of state action (e.g. enforcement) v. IC review of IOs or private actors.

So why did I cling to the judicial role heuristic in the face of these valid points?  There are three answers. Read the rest of this entry…

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The New Terrain of International Law: Courts, Politics, Rights

Published on April 22, 2014        Author: 

Alter bookThe 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. Formally speaking, ICs have the power to issue rulings in the cases that are adjudicated. I explain how this inherently limited power to speak the law translates into political influence. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, The New Terrain of International Law argues that ICs alter politics by providing legal, symbolic, and leverageable resources that shift the political balance in favor of domestic and international actors who prefer policies that are more consistent with international law. Read the rest of this entry…

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