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…