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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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Challenging (Some) Stereotypes and the DNA of (International) Law

Published on April 24, 2014        Author: 

Karen Alter has written an important and useful book surveying the ‘new terrain’ of international law. The book straddles international law and international relations/political science, and thus readers on both sides of the fence may find it a challenging read—as Karen herself acknowledges in the Preface. But this is not the only reason why readers may find the book challenging: its stated intention is to challenge stereotypes about international courts, and to demonstrate through the emergence of ‘new-style’ courts that we are moving from a contractual understanding of international law to a rule of law mentality. This is because ‘new-style’ courts do not engage solely in (bilateral) dispute settlement but rather also undertake public law functions such as enforcement, administrative review and constitutional review. I fully subscribe to Nico Krisch’s comments on how these functions interact (and have always interacted).

In this short comment I want to focus on the book’s central claim, not so much to summarily disagree with it—in fact to some extent I agree with the claim—but rather to highlight why I think it might be glossing over some important issues from the perspective of international law. Such glossing over may weaken the central claim, which is made with great force. As a (self-proclaimed) positivist international lawyer I found some of the arguments on which the central claim is based hard to digest.

The first point that I want to raise is about the ‘contractual’ paradigm of international law (and dispute settlement) and the move to a ‘rule of law’ paradigm (and public law functions). I should say at the outset that I find terms like ‘rule of law’ inherently suspicious, precisely because they operate as shibboleths for something good without having any agreed content—except perhaps in the broadest possible sense. More on this below. But there is also a problem with the contractual paradigm and ‘new-style’ international courts as an indicator of moving away from it. Well, we are and we aren’t moving away from it, for one, and it is not international courts that predominantly signify whatever move there is, in my view.

Whether we are moving away from a contractual conceptualisation of international law, and whether this is a new development signified by the rise of ‘new-style’ courts depends, first, on what we understand as such a contractual paradigm. Karen seems to be focusing a lot on treaty obligations (which in the first instance are contractual in the broadest sense) and indeed on reciprocal obligations, even arguing at some point that the violation of a contractual obligation ‘dissolves’ the counterparty’s obligation—which it does not, and in any event not automatically. But we have been moving away from this narrowly-conceived contractual paradigm since the late 40s; suffice it to mention here the Reservations to the Genocide Convention Advisory Opinion and the Barcelona Traction Judgment, to take just examples from the oldest-style permanent court you could imagine – the ICJ. The point is that this has not really translated in any significant change in locus standi for actors other than (directly injured) States except in the example of the very particular courts that Karen deals with in her book. Read the rest of this entry…

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The Path of Judicialization: A Comment on Karen Alter’s The New Terrain of International Law

Published on April 23, 2014        Author: 

Krisch photoNico Krisch is ICREA Research Professor, Institut Barcelona d’Estudis Internacionals.

Karen Alter’s The New Terrain of International Law is a landmark achievement. It presents a sophisticated picture of the changed landscape of international courts as it has emerged in the last few decades, distinguished by the fact that many of the new courts enjoy compulsory jurisdiction and can be accessed by non-state actors. This opens up a much greater field of action, gives these courts a considerable caseload and also makes them perform new roles, going beyond traditional inter-state dispute settlement to include administrative review, law enforcement, and constitutional review. Organized around these different roles, The New Terrain provides a very helpful structure for conceptualizing what international courts do today and what challenges they face, especially when it comes to ensuring compliance with their rulings, and it draws our attention to less well-known but increasingly active courts in Latin America and Africa. The ‘altered politics’ framework the book presents for understanding the impact of international courts – focusing on effects through the mobilization of (largely domestic) ‘compliance constituencies’ – unfolds quite differently for the different roles, thus promising significant insights into the political dynamics around international courts.

It is not always clear, however, whether the four roles mentioned are indeed the most helpful heuristic for understanding these dynamics. First, they are often mixed: law enforcement, for example, will always be a part of the other three roles – dispute settlement, administrative and constitutional review – and its compliance constituencies (the political actors that need to be mobilized in order to achieve compliance) will vary depending on the kind of law to be enforced. Dispute settlement, too, will often overlap with administrative and constitutional review, depending on what kind of action is impugned. The relevant compliance partners and supporters are likely to be very different if a dispute concerns the construction of environmentally harmful pulp mills than if it is about an arrest warrant that executes a legislative choice for universal jurisdiction. Even the distinction between administrative and constitutional review, though generally very helpful, will in many cases fail to reflect a difference in political dynamics. Indirectly, administrative review may challenge politically salient statutes – and will often challenge regulation enacted by agencies of a sitting government – while constitutional review may well affect legislative choices of the past with no relevant defenders today. Moreover, the dynamics are radically different when review (of both the administrative and constitutional kind) is directed at inter- or supranational actors than when it is directed at the national level. Both are treated jointly in the book, but the former type, supranational review, would probably warrant a distinct category altogether, possibly along the lines of the global administrative law project.

Alter’s understanding of the dynamics around international courts – the ‘altered politics’ framework – cuts across different theories of international relations. 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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Joint EJIL:Talk! and Opinio Juris Discussion: Karen Alter’s The New Terrain of International Law

Published on April 22, 2014        Author: 

Alter bookThis week we will be hosting a joint discussion, along with Opinio Juris, of Karen J. Alter‘s book The New Terrain of International Law: Courts, Politics, Rights, recently published by Princeton University Press. Karen is Professor of Political Science and Law at Northwestern University. The book’s introductory chapter is available on SSRN. 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.

Opinio Juris will host commentary by William Burke-White (University of Pennsylvania), Jacob Katz Cogan (University of Cincinnati), and Tonya Lee Putnam (Columbia University). Here on EJIL:Talk!, we will hear from Nico Krisch (Institut Barcelona des Estudis Internacionals) and Antonios Tzanakopoulos(Oxford University). Karen will respond to the comments on both blogs. We are grateful to her and all of the commenters for contributing to this symposium.

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Fair and Equitable Treatment: A Rejoinder to Martins Paparinskis

Published on August 16, 2013        Author: 

I don’t think that there’s all that much between Martins Paparinskis and me.   I certainly don’t decry the difference between treaty and custom in this field, or the important part that both play in encouraging investment and in the not inconsiderable task of balancing in that regard the interests of investors and the prerogatives of governments.

But Martins’s responses, valid as they all are, don’t provide an answer to my question, which is how his analysis helps in solving the individual dispute before the individual arbitral tribunal.   It may of course be that there will be cases (though I wouldn’t care to put a statistical probability on their likelihood) in which it can be conclusively established that the treaty Parties definitely did decide that what they wanted to have applied was the customary law standard (whatever that might be), or that they definitely didn’t want that but something else.   But in the normal run a tribunal is confronted with a general standard of protection expressed by agreement in treaty language.   The choice is whether that should be taken to mean what it says, or as hidden code for something else, and to that choice the Vienna Convention gives a clear answer in Articles 31(1) and 31(4). Read the rest of this entry…

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A Reply to Anthea Roberts and Federico Ortino

Published on August 16, 2013        Author: 

Anthea Roberts puts the argument of my book into broader international law perspective by asking three questions. First, she wonders whether there might be a need to reformulate the criteria of customary law to make them more realistic. Secondly, she gently chides me for being too hasty in dismissing domestic public law arguments. Thirdly, she is interested in the politics of the human rights analogy of investment law. I will first say a few words about human rights analogies and customary law, and then explain my position regarding domestic public law.

Human Rights Analogies

In a recent article (‘Investment Treaty Arbitration and the (New) Law of State Responsibility’ (2013) 24 EJIL 617) and in a forthcoming chapter I also address the analogical reasoning in investment law, looking at particular case studies in the law of State responsibility and law of treaties from different perspectives, including that of human rights law. It seems to me that the major conceptual objection (and here I quote from the chapter, footnotes omitted)

is that the human rights analogy fails to capture the structural dynamic of the investment protection regime. In particular, the grant of legal protection to investors is explicitly linked with and justified by utilitarian considerations of enticing the non-State actor to make the rational choice of engaging in an investment activity and therefore benefiting from protection. The proposition that there might be a rational choice to be made to become human so as to benefit from human rights protection strikes one as patently absurd from the perspective of human rights law; conversely, in investment protection law, the question of whether, when, and how a claimant becomes an investor is an important yet conceptually unremarkable jurisdictional box to be ticked in every dispute.

The idea of choice – and with it, an analogy with the consent-based law of treaties on third parties, rather than human rights – provides a powerful analytical perspective for examining different approaches in the law of treaties and State responsibility. It is less obvious that differences in teleology and structure between human rights and investment law pose similar challenges to arguments by analogy regarding primary obligations, where peculiarities of either regime may be appropriately incorporated in the process of comparative reasoning regarding particular rules. Read the rest of this entry…

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A Reply to Sir Frank Berman

Published on August 15, 2013        Author: 

I am very grateful to Sir Frank Berman, Anthea Roberts, and Federico Ortino for their wide-ranging observations about my book. As much as I would like to give an exhaustive reply to each of them, I could not do justice to all of their comments without exceeding the natural limitations of time and space imposed by the forum. I will therefore focus on a limited number of issues, that either seem to me to pose the most serious challenges to the argument that I make in my book, or to which I have given most thought. I will respond to Sir Frank Berman’s arguments in this post, and will address Anthea Roberts’ and Federico Ortino’s arguments in the next post.

Sir Frank Berman raises a number of questions about the style and substance of my argument. In particular, he seems doubtful about the practical validity of the distinction between treaty and customary rules in the area, and suggests that a clearer distinction between interpretation and application, the latter concept opening a wider scope for case-by-case variation, may dispose of my concern about accommodating investment arbitration in the structure of sources and interpretation of international law. I will address these two issues in turn. Briefly, I believe that the treaty/custom distinction is of considerable practical importance. While I entirely agree with everything that Sir Frank Berman says about the distinction between interpretation and application – and I would be so bold as to say that I do not ignore it in my book – it does not affect my argument that the great reliance on earlier arbitral pronouncements suggests a process of interpretation and application taking place regarding the same rule of (general) international law. (Sir Frank also makes certain observations about the effect that different structures of dispute settlement have on development of law; I will address that point in my response to Federico Ortino).

On the Treaty/Custom Distinction

Is it important whether a ‘fair and equitable treatment’ clause is read as a technical term of reference to custom (or a term that does not refer to custom as such but that does not preclude it from being taken into account in the interpretative process), or rather a term that neither requires nor permits reliance on general international law? In technical terms, an answer to such a question would depend on whether the rules of customary law are identifiably different from those that may be determined by interpretation of the treaty language. It is relatively easy to give an affirmative answer regarding rules on administration of justice, where (as I argue in Chapter 8) the basic principles are well-established: in particular, a wrongful act of denial of justice is complete only when the whole judicial system is exhausted, denial of justice focuses on procedure, and denial of justice by substance of the judgment is exceptional. It is not at all obvious, to say the least, that an interpretation not involving general international law would identify different requirements of exhaustion of remedies as a matter of primary obligation because conduct by a particular organ is concerned, or draw the distinction between procedural and substantive unfairness (the fact that most Tribunals do draw these distinctions strongly suggests that they are implicitly relying on customary law). Read the rest of this entry…

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The Interpretation and Application of Fair and Equitable Treatment: An Arbitrator’s Perspective

Published on August 13, 2013        Author: 

frank.berman

Sir Frank Berman KCMG QC is Visiting Professor of International Law at the University of Oxford and a member of Essex Court Chambers where his practice involves a wide range of international law issues, including international arbitration.

There can be no-one active in the field of investment arbitration who hasn’t been challenged, or even perplexed, or at least confronted by the question of the relationship between the guarantee of fair and equitable treatment for foreign investments or investors stipulated in bilateral or multilateral treaties and what is usually referred to as the ‘minimum standard’ laid down by customary international law.  But it won’t be possible for that debate to continue in future without reference to Martins Paparinskis’s superbly researched monograph.  More precisely, no excuse will remain for a failure to bring into the discussion the available materials bearing on the question, all of which are now gathered together between one set of slim covers, both those which are directly relevant to the issue in hand and those which are of interest by way of suggestive analogy.

But it is the very wealth and depth of the analysis that brings the focus back onto the underlying question itself, and how valid or how useful it is.  Listening to the argument (as I regularly do) from the arbitrator’s chair, about whether the Parties to a particular bilateral investment treaty intended ‘fair and equitable treatment’ as a reference to the customary law standard, or to mean something else, I find myself wondering just as regularly in my inner mind how that is going to help me solve the dispute in the case before me:  if the treaty provision should be understood as referring to customary law, then what is the customary law it is referring to?  If it is a reference to something else, then what was it the Contracting States wanted to add to (or subtract from?) the customary standard as they understood it?  It is of course possible that those queries might be answered by the travaux préparatoires if one had them (and for bilateral treaties one usually doesn’t).  But it is equally possible that the Contracting Parties had no common view as to the customary standard, or that they never even bothered to ask themselves the question, but in either case wanted instead to establish a treaty rule on which future investors would be able to rely.  That, after all, is one of the purposes of making treaties.

It’s for reasons of that kind that most of the arbitral tribunals on which I’ve sat have come to the conclusion that the question is essentially an academic one, and that their task is not to solve the academic debate but to make sense of the treaty in front of them, on its own terms, profiting for that purpose from the very sensible and practical set of provisions on treaty interpretation which the Vienna Convention offers.  The process entails, amongst other things, taking ‘fair and equitable’ as the portmanteau phrase it plainly is, and not trying to disaggregate it into a ‘fairness’ component and an ‘equitable’ component.  Nor have I found that arbitrators experience much difficulty in understanding the import of the phrase, as a broad and general rule enunciated in advance in such a way as to be capable of application to a wide and infinitely variable set of future cases and circumstances which the negotiating Parties couldn’t even begin to enumerate or contemplate at the time of their negotiation.

That leads me to a number of observations, not all of them profound. Read the rest of this entry…

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Investment Tribunals’ Case-by-Case Approach: A Response to Martins Paparinskis

Published on August 13, 2013        Author: 

Federico OrtinoDr Federico Ortino is Reader in International Economic Law at King’s College London.

I will focus my (two) brief remarks on Part II of Martins Paparinskis’ excellent monograph. First, the main argument in Part II (and one of the central themes of the entire work) is that “treaty rules on fair and equitable treatment refer to the customary minimum standard” (p 159) as a matter of Art 31(1) of the VCLT. Interestingly, before explaining the claim in positive terms (pp 160-166), Chapter 5 elaborates at length the claim in negative terms (pp 111-153): “no argument limited to treaty law can explain the existing and accepted practice [of elaborating the concept of fair and equitable treatment on a case-by-case basis]” (p 153). In short, investment tribunals’ reliance on previous investment tribunal decisions for purposes of interpreting pari materia treaty rules (like fair and equitable treatment clauses) cannot be justified within the boundaries of the customary rules of treaty interpretation (Art 31-32 VCLT), unless through the reference to customary law (and the minimum standard of treatment).

While taking into account the investment tribunals’ current practice (particularly when this seems to be a majoritarian one) is important, I wonder whether (or the extent to which) this line of argument is actually persuasive. In other words, the fact that tribunals’ reliance on the decisions of other tribunals interpreting similar rules found in other investment treaties cannot be justified on the basis of customary rules of treaty interpretation, may simply lead to argue that such reliance is misplaced, rather than to argue that treaty rules on fair and equitable treatment must refer to the customary minimum standard. I don’t dispute as such the main argument (treaty rules on FET must refer to customary minimum standard), but simply linking such argument with the ‘problematic’ practice of investment tribunals’ reliance on past decisions interpreting pari materia treaty rules.

Second, as noted above, one of the findings of Part II is that “the dominant approach in the arbitral decisions … has been to use case-by-case analysis to develop criteria, sub-criteria, and presumptions so as to explain the content of fair and equitable treatment” (pp 99-100). An issue that I find particularly interesting and mysterious is the ‘case-by-case’ terminology often employed (by tribunals as well as commentators) to describe a certain adjudicative methodology. Read the rest of this entry…

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