International relations have long been considered outside of the domain of law. Most people presume that law is only meaningful when backed by a central enforcer. By this logic, absent a world state international law cannot meaningfully exist. International law is rising in political relevance because since the end of the Cold War, international politics has become increasingly judicialized. Domestic actors increasingly see the rule of law as requiring respect for international law; domestic and international actors are increasingly invoking international law as they advocate for and justify policy prescriptions; and international courts, ad hoc international legal mechanisms, and domestic judges are increasingly adjudicating state respect for international law. The New Terrain of International Law charts the changes and trends in judicializing international relations by focusing on the creation and use of international courts (ICs). Today there are more than two-dozen international courts that have collectively issued over 37,000 binding legal rulings in individual contentious cases. The contribution of the courts, international or otherwise, is to say what the law requires, and to perhaps specify remedies for law violations. The New Terrain of International Law explains how this very limited power—the power to speak the law—translates into political influence, and it explains when and how delegating authority to international courts influences international and domestic politics.
After mapping the development of the international judiciary since the turn of the twentieth century, the book examines international courts in action focusing on eighteen case studies of international courts as dispute settlers, enforcers, and administrative and constitutional review bodies. The case studies span human rights, economic and territorial disputes, and mass atrocities law. They involve regions around the world, and countries that are not known for respecting international law or welcoming IC intervention. Collectively the case studies 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. The book concludes by considering the normative question of how to reconcile international judicial review and democratic politics.
Part I: Delegating Authority to International Courts: A Global View
Chapter 1: The New Terrain of International Law
The three primary objectives of this book are to reveal the paradigm shift of the contemporary international judiciary, conceptualize how new–style international courts (ICs) contribute to international politics, and normalize our understanding of international courts, seeing them first and foremost as courts, and second as international actors. The introduction defines key concepts and summarizes the main argument of the book. Section I–Courts– explains that today’s international courts (ICs) are fundamentally different from their predecessors. The vast majority of ICs today have new–style design features and increasingly apply international law that is embedded in domestic legal orders, and they have been delegated a broader range of judicial roles. Section II–Politics– explains how new–style ICs are able to alter domestic and international politics. Section III–Rights– explains how delegation to ICs contributes to generating and instantiating rights. Part IV provides a roadmap for the book.
Chapter 2: International Courts Altering Politics
ICs pretty much only have the power to say what the law means. How then can ICs influence state behavior and political outcomes? This chapter first considers when state and IC interests are aligned, and thus when international judges do not need to worry about eliciting state compliance with their rulings. I then provide three alternative understandings of how ICs influence state behavior in self–binding contexts. 1) ICs can be interstate arbiters, helping two states resolve a dispute by identifying from a set of acceptable outcomes the “legal” solution. 2) ICs can increase the multilateral costs of noncompliance. 3) Litigants can also seize ICs to influence domestic and transnational politics, convincing or coopting support from domestic actors with the power to choose compliance. The real question is when do ICs end up influencing international politics in each of these ways? The chapter unifies the three models into the altered politics framework, and then theorizes about the factors that generate variation in IC activation and influence. The altered politics framework allows international law to be a tool to circumvent domestic governments, with the result that delegation to ICs breaks the monopoly of governments and national judges to say what international law requires at home.
Chapter 3: The New International Courts
This chapter documents the proliferation and increased usage of ICs in recent times, presenting a birds’–eye overview of the international judiciary today. It identifies a shift from ‘old–style’ ICs, voluntary inter–state dispute resolution bodies. Starting in Europe, and spreading since the end of the Cold War, is a proliferation of more independent and active “new–style” international courts, ICs with compulsory jurisdiction and access for non–state actors to initiate litigation. These ICs have jurisdiction over international economic, human rights and mass atrocities criminal law, and delegation to ICs is more common in Europe, Latin America and Africa. The chapter shows how the creation, release of design-hobbles, and growing usage of international courts accelerated greatly at the end of the Cold War. Chapter four will explains how two critical junctures– World War II and the end of the Cold War—contributed to building the international judiciary of today.
Chapter 4: World History and the Evolving International Judiciary
This chapter explains how the end of WWII, the Cold War and the end of the Cold War have shaped the international judiciary, generating an ‘embedded’ approach to international law enforcement. I continue the focus on the international judiciary as a whole, highlighting how developments in one region and domain affect developments in similar and distant regimes. Proponents of international courts draw lessons across time, waiting for the permissive conditions to arise after which they suggest new ICs or improvements in existing ICs. The path-dependent nature of institutional change means that the form and nature of international judicial institutions evolves across iterations. Judicial authority also evolves through legal practice, which in combination with disappointment with national solutions and developments in the international political context (including nationally based actors asserting extraterritorial jurisdiction), generate permissive conditions for creating or reforming ICs.
Part II: International Courts in Action
Chapter 5: International Dispute Settlement
This chapter is focused on how ICs contribute to international dispute settlement. The chapter resides in the old inter-state arbiter terrain of international law, where ICs are dependent on states and where disputes end because the litigants embrace a court ruling. Even in this old terrain, ICs make important contributions to dispute resolution. After documenting the eighteen ICs with explicitly delegated dispute settlement jurisdiction, case studies demonstrate the limited ability of ICs to resolve transborder disputes, focusing on four ‘least likely’ cases where ICs make meaningful contributions to enforcing transborder contracts. The limitations of IC influence revealed in this chapter sets the stage for the next three chapters, which reside more clearly in the new terrain of international law.
Chapter 6: International Administrative Review
This chapter considers ICs in their administrative review role, where ICs hear private litigant challenges to the decisions of administrative actors. Section I documents the thirteen ICs with explicitly delegated administrative review roles. Section II considers ICs playing their administrative review role vis–à–vis the decisions of supranational and national administrative actors. Two cases focus on fairly uncontested international administrative review, which involve a review of the application of international administrative rules. The second set of case studies show administrative review as treaty enforcement. These rulings are more contested in part because the adjudicatory procedures tend to favor foreign actors but also because governments clearly prefer national over international administrative rules. The key interlocutors for ICs in their administrative review role are the administrators themselves; a lack of support by administrators serves as a key hindrance to state respect of IC administrative rulings.
Chapter 7: International Law Enforcement
International courts with enforcement jurisdiction are explicitly empowered to adjudicate state compliance with international law. Section I discusses IC’s contribution to law enforcement, and identifies the nineteen permanent international courts with explicitly delegated enforcement roles. The overview identifies significant design variation in which actors can initatite litigation and in the remedies available. Despite these variations, the role of the IC is the same. ICs name legal violations and sometimes specify remedies, providing resources for compliance constituents advocating respect for international law. Section II focuses on ICs enforcing international law and influencing state behavior and politics more broadly. Four case studies span economics, human rights and war crimes with different factors leading states to comply with IC rulings. The cases show the different effects of IC design as they shape whether cases are litigated, how the nature of what compliance entails shapes political outcomes, and how sanctioning power is sometimes but not always important in influencing outcomes.
Chapter 8: International Constitutional Review
Many people question whether the metaphor of a constitutional court is appropriately transferred to international courts (ICs). This debate misses, however, that at least ten ICs have been explicitly delegated constitutional review jurisdiction, meaning jurisdiction to invalidate statutes and executive acts on the basis of a conflict with a higher order law. Section I identifies ten ICs explicitly delegated constitutional review roles. Whether ICs in fact play a constitutional review role depends on the existence of a culture of constitutional obedience wherein violations of higher order legal norms are seen as illegitimate and thus politically unsustainable. Developing cultures of constitutional obedience is easier with respect to the IC review of international acts, and harder with respect to IC review of state acts where IC’s constitutional authority must compete with the authority of domestic judges and institutions. This argument is developed empirically through two case studies that focus on ICs reviewing international acts (Section II) and four case studies that focus on IC review of state acts (section III). The case studies suggest that ICs exercise their constitutional review powers with caution, and the reaction of domestic judges is key in shaping whether or not IC’s constitutional edicts affect national political outcomes.
Part III: Courts, Politics, Rights
Chapter 9: Conclusion: International Courts and Democratic Politics
This concluding chapter draws out the implications of this book’s analysis for international relations theory while identifying the next step for theory building. I then turn to the normative and policy questions that delegation to international courts inevitably raises. The external and legal nature of international courts is their attraction, providing international courts with authority, power and independence from governments. This external and legal nature also is not subject to democratic control. The conclusion returns to the three models of how international courts influence politics, showing that each offers a different flawed way to reconcile respect for international law with democratic politics. I then add the book’s altered politics reconciliation to the debate. Individually, each attempt at reconciliation falls short. But together, the different reconciliations are better than relying on domestic legal processes alone. Presuming that we can find a satisfactory way to make international law democratically accountable, there is another debate we need to have: When will making international law enforceable contribute to the effectiveness of international law? The book ends by laying the foundations for a deeper policy debate about where and when delegation to international courts is a normatively and politically desirable policy approach.
Case Study Index
The book has eighteen qualitative case studies of international adjudication in action. Case studies allow me to identify the causal pathways through which international adjudication influences state behavior and to move beyond a binary focus on state-compliance. The brief case study discussions explain how the issue came to be adjudicated, identifying the influence of the IC before and after the ruling and extending beyond individual cases to examine the larger influence of the court for the issue at hand. The case studies relax my focus on ICs in Part I of the book; they span the globe in their geographic reach; and they also allow me to compare side by side political dynamics in economic, human rights, and mass atrocities adjudication.
Dispute Settlement
5.1 ICJ– “Bahrain v. Qatar territorial dispute”– The International Court of Justice resolves a territorial dispute, drawing the boundary between Bahrain and Qatar and thereby facilitating the regional economic development
5.2 ITLOS– “Japan v. Russia– seizing of vessels”– International Tribunal of the Law of the Seas assures fair treatment of Japanese vessels seized for illegal actions in Russian waters (Tomimaru & Hoshinmaru cases). Meanwhile the territorial dispute between Japan and Russia persists.
5.3 “Iran–US mass claims tribunal” adjudicates public and private disputes arising from the Iranian revolution. Meanwhile the ICJ fails to resolve disputes between the US and Iran over the seizing of the US embassy and the bombing of oil platforms.
5.4 “OHADA business law” The Organization for the Harmonization of Business Law in Africa is created as an appellate body for public and private cases involving OHADA “Uniform Acts.” The OHADA court hears many cases, and the discussion offers limited suggestive evidence of a partial impact of this new body.
Administrative Review
6.1 ECJ–“Microsoft” and “GE/Honeywell merger” cases – The European Commission fines US company Microsoft for uncompetitive practices, and forces the company to unbundle software and divulge information to European software producers. The Commission then bars the merger of two American companies.
6.2 ATJ– “Belmont case”– The Andean Tribunal fills in legal lacunae and coordinates transnational administrative decision–making regarding the trademark “Belmont.”
6.3 NAFTA and WTO “Softwood lumber”–NAFTA bi–national review and WTO review of national determinations of dumping and countervailing duties with respect to US levies on Canadian softwood lumber. The dispute is resolved through partial compliance and a political deal.
6.4 ICSID: “Metalclad” ICSID Investor dispute settlement system to compensate for an indirect Mexican administrative taking of the property of an American foreign investment
Administrative cases in other chapters:
ITLOS– Japan v. Russia– Seizing of vessels (5.2); “Second use patent case” ATJ annulment of Peruvian second use patent decree (7.2) ; “Seizing private assets– (Kadi) case ( 8.2).
Law Enforcement
7.1 WTO– “Foreign Sales Corporation”– WTO review of the United States special tax treatment for goods exported abroad leads to a change in US tax law.
7.2 ATJ– “Second use patent case” Andean tribunal’s review of Peru’s policy granting patents for new medical uses leads to a tacit nullification of a Peruvian decree that authorized second use patents.
7.3 ECOWAS– “Modern day slavery case” ECOWAS court finds that Niger’s government has not done enough to remedy enslavement via family law, and Niger immediately complies with the ruling.
7.4 Special Court of Sierra Leone– “Charles Taylor case”– Indictment, arrest and conviction of Charles Taylor, President of Liberia, for crimes committed in a neighboring country.
Enforcement cases in other chapters:
Metalclad ICSID Investor dispute settlement (6.4); NAFTA and WTO– Softwood Lumber (6.3); ATJ– Colombian alcohol–related practices case (8.4); ICTR– “Rape as a war crime case” (8.6) (Prosecutor v. Akeyesu); ECJ– “Women in combat support roles case” (8.3); IACtHR–“Indigenous land rights case” (8.5).
Constitutional Review
8.1 ATJ– “Peru exemptions case” – ATJ invalidates a collective Andean executive decision exempting Peru from Andean Free Trade Area requirements.
8.2 ECJ– “Seizing private assets (Kadi) case”– ECJ invalidates a Council regulation implementing an act of the UN Security Council and a Commission action implementing a UN Sanctions Committee decision.
8.3 ECJ– “Women in combat support roles case”– ECJ rejects a German constitutional provision that bars women from combat support roles, provoking a revision of the German constitution.
8.4 ATJ– “Colombian alcohol–related practices case” – ATJ finds Colombian alcohol policies to violate Andean free trade rules and Ecuadorian retaliation to be illegal. Ecuador complies, but Colombia does not.
8.5 IACtHR–“Indigenous land rights case” IACtHR creates a positive obligation for Nicaragua to demarcate land rights for the Awas Tigni, and Nicaragua complies in full.
8.6 ICTR– “Rape as a war crime case” – ICTR creates command responsibility to stop sexual violence.
Case Studies by Subject Matter & Country:
Economic law
5.4 OHADA Business Law– various business codes in Francophone Africa
6.1 ECJ–“Microsoft case, GE/Honeywell merger cases”– antitrust in Europe
6.2 ATJ– “Belmont case”– intellectual property (trademarks) in Colombia and Ecuador
6.3 NAFTA and WTO–“Softwood lumber dispute”– antidumping in the United States
6.4 ICSID and NAFTA–Metalclad– investor dispute in Mexico
7.1 WTO– “Foreign Sales Corporation”–subsidies in the United States
7.2 ATJ– Second Use Patent case–¬ intellectual property (patents) in Peru
8.1 ATJ– Peru exemptions case – derogations from free trade provisions in Peru
8.4 ATJ– Colombian alcohol–related practices case– Non–tariff barriers to trade in Colombia and tariff barriers in Ecuador
Human rights law
7.3 ECOWAS– Modern Day Slavery case – forced labor, family law practices in Niger
8.2 ECJ– Seizing private assets (Kadi) case– due process rights in the European Union
8.3 ECJ– Women in combat support roles case– gender equity in Germany
8.5 IACtHR– Indigenous land rights case– land rights of indigenous peoples in Nicaragua
War crimes
7.4 Special Court of Sierra Leone– Charles Taylor’s indictment and arrest for crimes in Sierra Leone
8.6 International Criminal Tribunal for Rwanda– “Rape as a war crime” in Rwanda
Other
5.1 ICJ– Bahrain v. Qatar Territorial dispute
5.2 ITLOS– Japan v. Russia– seizing of vessels
5.3 Iran–US Mass Claims Tribunal–seizing of assets