The New Terrain of International Law: Courts, Politics, Rights.

Author:Alvarez, Jose E.
Position:Book review
 
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The New Terrain of International Law: Courts, Politics, Rights. By Karen J. Alter. Princeton, NJ: Princeton University Press, 2014. Pp. xxiii, 365. Index. $35, 24.95 [pounds sterling].

The New Terrain of International Law provides evidence that sometimes it takes a non-lawyer to illuminate a part of the legal forest that those of us who are too close to its trees are unable to see. Karen Alter, a professor of political science at Northwestern University School of Law, has written an attention-grabbing, prize-winning (1) book that canvasses the impact on domestic and international politics of "new style international courts," namely those combining compulsory jurisdiction with access to nonstate actors (including individuals) as litigants. Alter deploys an impressive body of data (thirty-two tables, eighteen case studies) to support her thesis that there has been a paradigm shift in creating and using international law and courts since the end of the Cold War, when we went from six permanent international courts (ICs) to today's twenty-four. Her "new terrain" of international law, consisting of the "globalization of judicial politics" and the "judicialization of international politics" (p. 335), describes a world in which, because more ICs are adjudicating issues that once were considered only by domestic courts or other national venues, "politics takes place in the shadow of courts with the lurking possibility of litigation shaping actor demands and political outcomes" (id.). Alter does not just describe her "new terrain." She also re-conceptualizes ICs as "tools of social control that powerful state actors use to lock in their policy preferences" (p. xviii) and supplies a normative rationale to explain why rule by international judges can be reconciled with politically legitimate democratic governance (pp. 351-64).

Alter describes her ambitious book as a "theory-generating enterprise" (p. xix) that aspires to draw the attention of international relations scholars (who have largely ignored the effect of law and courts) and international lawyers (who have largely ignored the paradigm-shifting impact of international courts on politics) to a phenomenon that not only has generated 37,000 legally binding judgments (p. 68), but also has had profound effects on our contemporary conceptions of sovereignty and democracy. Alters book takes seriously the proposition that the legal rules of the game matter to policymakers and ordinary people. At the same time, despite a focus on "case studies" that often track particular judicial decisions, this is not a book containing the close textual analyses of these decisions that lawyers would expect. The author's preface is careful to warn readers that much of the book is a "lumping" or sorting exercise that "glances over important details and nuances that are of meaningful legal importance for the purpose of comparison" (p. xxi). It is a "positive political science enterprise" (p. xvii) that happens to have legal subject matter--the rare political science text that treats international judges as important actors.

The four chapters of Alter's Part I provide a descriptive account of how states came to delegate significant authority to ICs; how "new styled" ICs alter politics; what the subject matter, geographic reach, type, and number of rulings issued by the twenty-four ICs are; and how these courts fit into broad historical trends. Her subsequent four chapters in Part II divide the world of both old-fashioned and "new styled" ICs into four types: those engaged in interstate dispute settlement, administrative review, law enforcement, and constitutional review, respectively. Each of these chapters defines these four judicial functions and concludes with illustrative "case studies" of the four types, ranging from well-known decisions to the far more obscure. Chapter 5, which addresses seventeen ICs that permit either state or private party initiated "dispute settlement," concludes with three- to four-page descriptions of the ICJ's Qatar v. Bahrain territorial dispute, (2) ITLOS's handling of the Japan v. Russia seizing of vessels disputes, (3) the establishment of the Iran-U.S. Claims Tribunal, and the operation of the Organization for the Harmonization of Business Law in Africa (OHADA) as an appellate body for cases involving OHADA business law. Chapter 6, which canvasses thirteen ICs engaged in "administrative review," includes descriptions of the EU Court of Justice's competition case involving Microsoft (4) and the European Union's administrative handling of the General Electric/Honeywell merger, the Andean Tribunal's handling of the Belmont trademark case, (5) the Softwood Lumber case in NAFTA (6) and in the WTO, (7) and the Metalclad v. Mexico arbitral decision under NAFTA's investment chapter. (8) Chapter 7, describing nineteen ICs engaged in "law enforcement," includes descriptions of the WTO's review of the United States' Tax Treatment for Foreign Sales Corporation, (9) the Andean Tribunal's review of Peru's "second use patent" involving Pfizer, (10) the ECOWAS Court's involvement in a case alleging modern day slavery in Niger, (11) and the Special Court for Sierra Leone's conviction of Charles T aylor. (12) Chapter 8's review of ten ICs engaged in "constitutional review" canvasses two types of tribunals, those that have invalidated "supranational legislative acts" (illustrated by case studies of the Andean Tribunal of Justice's invalidation of a decision exempting Peru from the Andean Free Trade Area (13) and the ECJ's first Kadi Decision (14)) and those that have reviewed "domestic legislative or constitutional acts" (case studies of the ECJ's review of Germany's constitutional provision disallowing women in combat support roles, (15) the ATJ's review of Colombia's and Ecuador's alcohol-related practices, (16) the Inter-American Court of Justice's examination of Nicaraguan land rights for indigenous peoples, (17) and the ICTR's Akayesu ruling (18)).

Alters Part III draws four implications from the preceding chapters and particularly from the case studies surveyed in Part II. First, that "we should not assume that national sovereignty is the highest order concern even if governments still say that it is" (p. 339). Alter argues that this is so because there is a "deep thirst for the rule of law among people" and the "more governments value their reputation as rule of law actors, the more sovereignty will descend as an absolute or higher order priority of governments" (p. 340). Second, that the increasing resort to international law and international courts "suggests that we live in a postrealist world, one where perceptions of legality shape both foreign and domestic policy" (id.). To Alter, "international power politics and material interests are not the only factors that matter" (id.). Third, that it is time to "move beyond seeing international society, in Hedley Bull's terms, as a society of states" (p. 341). According to Alter:

International legal politics take place within a legitimized discourse of the "rule of law," which by design operates according to a different set of logics and rules than the political realm. This "rule of law" discourse allows for law-backed "out group" preferences to trump the law-violating "in group" preferences of those who wield power. Enhancing the rule of law arguably expands the possibility of achieving international public goods, defined in practice as most public goods are defined, by having laws that subordinate individually self-interested behavior to achieve some publicly defined collective benefit. (P. 341 (footnote omitted)). Finally, Alter argues that "law is rising in political salience" so that "globalization has now extended to the rule of law" (p. 342).

In the final sections of her book, Alter examines the factors that might explain the differential influence and authority of IC decisions once we hold constant the distinct remedies being deployed in them or the law that the rulings seek to affect. She argues that this differential impact--what some might see as differing levels of compliance--turns on the ways these rulings are used by different actors at the three stages of the adjudicative process, namely while the participants are still engaged in pre-litigation bargaining in the shadow of the court, during the process of the litigation itself, and after the legal ruling is issued. Finally, Alter turns her attention to what she calls the "democratic politics conundrum" faced by ICs, namely the problem of reconciling "respect for international law with the priority of allowing a national democratic political choice" (p. 336). She finds existing attempts to reconcile democratic principles with the turn to ICs, such as efforts to associate ICs with global values...

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