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

Nico 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. It rejects the notion that international courts can only be influential when coordinating pre-existing state preferences, and it is open to causal pathways that draw on rationalist, liberal, and (to an extent) constructivist accounts. By allowing for a multiplicity of factors, ‘altered politics’ openly eschews an emphasis on parsimony, yet it draws particular attention to the ways in which international court decisions can help to mobilize certain (especially domestic) actors whose preferences or normative dispositions are affected. This approach is avowedly transnational, and it takes seriously the fact that a certain number of actors, especially domestic judges, will care about legality as such. (It dismisses – somewhat summarily, I find – the idea that the latter effect may depend on the degree of openness of the domestic legal system. Instead, it sees domestic rules about the effect of international law as being merely the result of judges’ preferences: “[w]here states and judges do want to follow international law, they find ways to do so” (p. 63). Judges certainly have different techniques at their disposal but they operate within a normative environment that is not infinitely malleable, at least not in the short run. And if they have come to take for granted that international law does play a role for defining domestic legality, the judgment of an international court may simply have more influence on what they ‘want’, or better: think of as right.)

If the altered politics framework is usefully complex (and attentive to actors’ normative commitments) it appears as somewhat undercomplex in one respect – time. While The New Terrain provides a broad overview over the creation and expansion of the international judiciary, its core is built around a set of particular court cases. The case studies nicely contextualize the operation of a broad range of courts, but using these kinds of ‘snapshots’ runs the risk of anachronism, and the focus on compliance in the broader analytical framework reinforces this risk. As others have observed, compliance is too narrow to capture the effects of international law, and this is especially so in the context of international courts. Their rulings may have more diffuse results, for example by constructing meaning, creating authority, or shaping values. When the Inter-American Court of Human Rights (IACtHR), in Velásquez Rodríguez, established its jurisprudence on forced disappearances, the question of compliance by Honduras in the particular case was arguably less important than the fact that the court created visibility and set new standards that henceforth could not be ignored in legal (and broader normative) discourses on such practices in Latin America. International criminal tribunals, in trying individual cases, may also recreate and strengthen notions of universal morality with a view to reinforcing their own authority in the future. Likewise, when the European Commission on Human Rights, and later the European Court on Human Rights (ECtHR), started off with cautious findings, they were criticized for their leniency but were also building trust among governments, warding off backlashes and paving the way for a creation of authority (and an increased margin of manoeuvre) over time. The ‘altered politics framework’ does not exclude such effects, but it would have to build them in more explicitly than The New Terrain does.

Karen Alter’s book is very suggestive in drawing up the picture of a new international legal order, characterized by a move towards the rule of law through the rise of new-style courts with compulsory jurisdiction. Reading this account, it almost seems as if the peace-through-law movement of the interwar years has finally been vindicated. At closer look, though, this new order still has a very limited reach. It operates, as Alter acknowledges, primarily in three issue areas – economic affairs (trade, investment, common markets), human rights and mass atrocities – while other areas, such as international security or environmental protection, are largely untouched (and the few instances in which such areas have become the subject of litigation in the ICJ are not taken up in the book). This suggests that, for understanding the political dynamics of international courts, the specificities of the different issue areas may be more consequential than other factors, and this would be in line with the fact that the compliance constituencies at the center of Alter’s account vary significantly across these areas. It also suggests that the factors behind the creation of courts and tribunals – favourable in some areas, less so in others – may carry over into the politics of compliance to a greater extent than the ‘altered politics’ model indicates. In trade, for example, a general interest in ensuring reciprocity may not only have helped to establish a dispute settlement mechanism; it may also later have helped to make governments accept rulings against them more readily.

If the new international courts operate in just a few issue areas, they also operate in relatively small geographical pockets. Unsurprisingly, Asia hardly figures in the book, and in Africa most activity is concentrated in the ECOWAS Court of Justice and in the Common Court of OHADA, the Organization for the Harmonization of Business Law, both operating in Western Africa. In Latin America, apart from the IACtHR, the prime example in the book – with an impressive number of decided cases – is the Andean Tribunal of Justice, but it has jurisdiction over only four member states. And of the more than 37,000 rulings in contentious cases that Alter counts, 90 per cent have been issued by just two European courts – the European Court of Justice (ECJ) and the ECtHR. On this background, one would have expected more attention to the latter two bodies, and while the ECJ has been the focus of Alter’s earlier work, the only marginal appearance of the ECtHR in The New Terrain is at least surprising, also because of the extensive body of recent work available on it. However that may be, the resulting picture of judicialization is that of a rugged terrain in which we see a few peaks – and vast lowlands (or perhaps, in a maritime metaphor I’ve used elsewhere, ‘islands’ of judicialization in a broader sea).

If this picture is correct, we will probably need a better understanding of when and where courts are not created or, when created, fail to develop. The political conditions under which we see international courts grow may, after all, be quite specific to particular issue areas and regions and depend on very particular social and economic forces and historical junctures. The ‘new terrain’ of international courts, captured so impressively in Alter’s book, may remain rather exceptional; it may even shrink if courts face a major backlash; or it may expand into yet more areas and regions. We don’t know – and we should not assume that the trend towards ever more courts and tribunals continues unchallenged. On the global level at least, the drive towards new courts seems to have stalled since the turn of the century, and existing courts face increasing politicization as they become more visible and influential. The path of international judicialization is unlikely to be straight.