Editor’s Note: This is the third of a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . The earlier posts in the series can be found here and here.
Buried toward the end of The Rise of International Criminal Law is a discussion of communities of authority and interpretation in international law and ICL. Neither Kapur nor Roth raises it, for the very good reason that it is buried toward the end in a couple of paragraphs. As time has gone on since publication of the article, however, I have gradually become convinced that a central, unavoidable question in all this is one I have posed before in the context of IHL – “Who owns international law?” Who has interpretive authority over it?
It’s contested, and always has been. That is a historical constant, and so in writing the original article I mentioned it but did not follow it up. But as I consider ICL and its social claims more deeply, I’m convinced that the growth of the tribunal structure internationally and the deeper involvement of national tribunals through various forms of universal jurisdiction – from Garzon to the ATS, as it were – has in fact introduced a new dynamic in the otherwise perennial argument over interpretive authority in international law. It is a dynamic of fragmentation.
The reason, I think, is the nature of tribunals and judgments as they become widespread enough to become a real source of authority and interpretation. The nature of courts, and judgments, is that they gain in legitimacy and authority, on their own terms, by asserting themselves and their authority. But they do that in part by doing self-referentially – a sort of bootstrapping of legitimacy.
Unlike in earlier periods of contested authority over interpretation in international law, in which states and state practices and their statements and declarations and so on, along with other bodies and players, all had to contend with each other in a somewhat more unitary arena – today’s tribunals gain legitimacy and authority, I suggest, by deliberately ignoring the rest of the pretenders to the throne of interpretation. Or at least they think they do, because that is what happens in other legal systems. The law looks to itself, looks to its court cases and decisions for more decisions, rules of decision, and finally authority itself. But the effect is to turn the community of interpretation in upon itself, because interpretive authority is maximized, it turns out, by ignoring everyone else.
That’s a hypothesis, but one that I increasingly think is true, and I believe helps account for the increasing gaps between interpretive communities in international law. When I debate with various people about, say, the legal status of targeted killing and drones, very often the source of disagreement goes back to the doctrine of sources. We don’t agree on what constitutes authority in international law. The ships are not just passing in the night – they are headed in different directions. Consider Harold Koh’s recent speech at ASIL as Department of State Legal Adviser, and his opening remarks on the jurisprudence, as it were, of the Legal Adviser’s office, and the US government, into which he fits in a long line of legal counselors.
Koh made clear, certainly, that he was not free simply to ignore the record of state practice and opinio juris and internal formed legal opinions of that office; I am not sure how well received that part of his address was by his academic audience, particularly as framing the defense of targeted killing that came later. One can say that there is no true clash here, but increasingly I think that would be blithe. If there is no immediate clash of legal world-views, it is because these worlds of internally coherent, authority-claiming international law interpretation do not really even speak to one another any more. One of these days, each will assert its views as authoritative, and the gap will be revealed – quite possibly over this matter of drone warfare and targeted killing.
I believe that this is becoming more true, in large part on account of the rise of ICL, and its self-legitimating tendencies to displace states, their explicit treaty arrangements, state practice, and state opinio juris as the sources of law. The self-legitimation lies in adopting an important preference for listening to oneself as a source of authority – and discovering, pleasantly, that over time screening out other contending voices of authority actually works to confirm one’s legal authority (as states have always done, of course, thinking, however oddly, that they make international law). Works, in my view, until un-ignorable states (read: less the US than China) decide to do something different.