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.
First, the book actually started with the four judicial roles and my frustration with the political science focus on ICs as agents of states. This frustration led to my 2008 article on ICs as Trustees. In The New Terrain of International Law I use the four roles to develop and qualify my claims about IC’s as trustees.
But starting somewhere is not a reason to stay with an approach. Indeed, early on I understood that many lawyers see political scientists’ fixation on ICs as states’ agents as so fundamentally misguided that it isn’t really worth discussing.
I stuck with the four-role framework because I think it bears fruit. My central argument about the four judicial roles is that the key compliance partners vary by role. The dispute settlement chapter emphasizes the litigants as key compliance partners, arguing that the dispute ends when litigants accept a ruling. The administrative review chapter highlights how administrative agencies are key compliance partners. The constitutional review chapter highlights the important role of national supreme courts embracing the binding and higher order nature of international law and IC rulings. The enforcement chapter highlights how the compliance partner varies based on what compliance with an IC ruling entails.
I argue that dispute settlement and administrative review tend to be ‘other binding’ roles where states use delegation to courts to accomplish their objectives. Enforcement and constitutional review tend to be self-binding roles where ICs are more like trustees of the law. (The chapter case studies complicate this simplification to some extent).
By looking at how compliance partners vary by role, we can get past the claim that government support is a necessary or a sufficient condition for IC influence. We can also see why considering ICs as ‘simple problem solving device for states’ is both limiting and incomplete.
My second reason for sticking to the roles is that I really did not want to focus on the “core objectives” of ICs, if by core objectives one means having states pay for violating economic agreements and human rights, or committing mass atrocities.
I do not dispute that these core reasons may be why ICs are created in the first place. But I think these objectives are already emphasized and that sometimes analysts are led astray by sticking to core objectives. I also wanted to push readers and scholars out of the easy tendency to silo conversations about ICs into the domains of economic issues, human rights and war crimes.
I very intentionally put diverse case studies in each chapter (with the exception of the administrative review chapter), focusing on commonalities amidst the substantive diversity of the law. There are fundamental differences in IC politics based on legal subject matter. A cost of my choice is that I underplay these differences. I also agree that ICSID in particular is an awkward fit.
But I think that one can explore differences best by comparing ICs that vary across subject matter jurisdiction. The coding and tables provide a road map for doing so. One can, for example, take ICs with enforcement roles in Latin America and figure how human rights enforcement plays out very differently than enforcement of economic agreements, even where there is similarity in social and political contexts.
I also wanted to show that ICs influence law and politics beyond achieving the “core objectives.” Yes the ECJ, WTO and even ICSID bodies play more than one judicial role. I think we can better see the many contributions of ICs when we look across judicial roles.
My biggest problem with a focus on “core objectives” is that it feeds into the naïve idea that IC success should be measured by whether or not the core objective is achieved.
Most serious scholars already know why this approach is a problem. We know that holding a legal system constant, crime rates rise and fall based on weather, hours of daylight, poverty, prevalence of drugs, prevalence of guns, and other factors. If these other factors are the proximate causes of rising crime, then surely one cannot assess the success of the legal system by the extent of crime.
This logic applies to war crimes. Surely the best way to limit the perpetration of war crimes is to limit war. ICs can perhaps make combatants think twice about whether a certain behaviour constitutes a ‘war crime.’ But if we ever are fortunate enough to end the scourge of war, it is not going to be judges or prosecutors who make war or war crimes obsolete.
It is reasonable to assess the value added and cost effectiveness of an IC by asking whether and how much an IC contributes positively to achieving core legal and substantive objectives. But I wanted to have people think harder about IC effectiveness. I am surely preaching to the choir when I write on this blog that analysts must separate the question of IC effectiveness from the question of how we achieve progress towards core objectives.
My final reason for sticking with this judicial role heuristic is that I know of no one else who considers how adjudication works differently in dispute settlement, administrative review, enforcement and constitutional review roles.
The political science fixation on IC’s as agents of states is incomplete at best, and arguably even misguided. But if it is misguided, then one needs to offer something in its place. Each role chapter identifies the universe of permanent ICs that have been delegated a specific role, based on the coding of Court Treaties.
I argue that the coding represents a base-line of explicit state consent (p. 80-1). The coding, and the appendixes that match roles to treaty articles (available for download on the book’s website), provide a handy starting point of like cases that social scientists can compare. As Alford points out, this starting point is incomplete because there are more non-permanent adjudicatory bodies one could add.
Many questions then spring from this baseline. One question, for example, is whether it matters that an IC was explicitly delegated a role. Another question is what leads to variation in IC influence within a given role? If one traces the coding to the wording in treaties, we can explore how much variation in wording and access rules of a role matter in terms of legal interpretation, the types of cases that are raised, and substantive outcomes.
Other contextual factors may matter too, which is a topic a collection of scholars will be exploring in a special edition of Law and Contemporary Problems. My modest claim is that these sorts of questions are easier to investigate where there is a common baseline regarding what jurisdiction has been delegated to an IC.
So although I agree that the role based analysis is not the only way to slice, dice and categorize the universe of ICs, and maybe not even the “best heuristic,” I think the heuristic does help us see variation and address new and important questions.
Tzanakopoulos concurs with Krisch’s critique of the role based categories, and then raises his own concerns.
A central claim in my book is that we are moving from a contractual conception where international legal obligations are owed to signatory states, to a rule of law conception wherein a marker for legitimate governance is respect for international law. This change has been a long time coming. Certainly human rights law and international criminal law only make sense in a world in which international legal obligations are more than contracts owed to signatory states. I also argue that this changing conception of international law is probably more the cause than the effect of delegating a broader range of judicial roles to ICs.
Tzanakopoulos suggests that I am smuggling in normativity through my invocation of ‘the rule of law.’ I too dislike when scholar smuggle in normativity through word choice. My personal pet peeve is the use of “efficiency.” Perhaps I should have used another word besides rule of law, but I am really not sure what that word would be. What I care about is the idea that legitimate governments are not above the law, and that legal obligation is owed to the body politic.
I am not saying that governments that respect international law are legitimate, or that international law is legitimate. Rather, my claim is that actors are fighting over international legal interpretation because there is a growing perception that legitimate governance respects the international rule of law. How else can we understand Vladimir Putin’s efforts to dress up his annexation of the Crimea as a legal form of self-determination, and his angling over his responsibility to protect Russian speakers in Ukraine.
International lawyers have long seen legal obligation in rule of law terms, but political scientists have not. Moreover, in the US there is a revival of the idea that international law is or should be conceived of as mere contract. Pundits point out how the US has also violated international law, as if American violations justify Russian violations. Eric Posner and Alan Syke’s book on the Economic Foundations of International Law and their normative support for “efficient breach” of international law are recent examples.
I address directly normative questions in the conclusion of the book where I focus on international courts and democratic politics. But throughout the book, I try hard not to paint a rosy normative picture about international courts or international law.
I point out that ICs push in the direction that is encoded in the DNA of the law. This law is written by powerful states, and more often than not ICs will be promoting the goals of market liberalization, promotion of human rights, and punishing (a subset of) state actors that perpetrate mass atrocities (p. 23). To me, only the last objective is possibly normatively just in a Rawlsian sense, and the way it works in practice certainly does not meet the criteria of Rawlsian justice.
Political scientists take as self-evident that very few things are inherently good or bad. Power is a relational concept, and there is always a relative winner and a relative loser. My claim is that legality is an increasingly important part of legitimation politics and “ICs are legal actors that traffic in the currency of rule of law expectations” (p. 28).
I want to end by thanking An Hertogen and Sadie Blanchard for organizing this symposium, and Opinio Juris and EJIL talk for hosting it. It is the very first written feedback I am receiving on the book. Thanks again to Tonya Putnam, Roger Alford, Jacob Katz Cogan, Antonios Tzanakopoulos and Nico Krisch for their thoughtful engagement with my book!