Challenging (Some) Stereotypes and the DNA of (International) Law

Karen Alter has written an important and useful book surveying the ‘new terrain’ of international law. The book straddles international law and international relations/political science, and thus readers on both sides of the fence may find it a challenging read—as Karen herself acknowledges in the Preface. But this is not the only reason why readers may find the book challenging: its stated intention is to challenge stereotypes about international courts, and to demonstrate through the emergence of ‘new-style’ courts that we are moving from a contractual understanding of international law to a rule of law mentality. This is because ‘new-style’ courts do not engage solely in (bilateral) dispute settlement but rather also undertake public law functions such as enforcement, administrative review and constitutional review. I fully subscribe to Nico Krisch’s comments on how these functions interact (and have always interacted).

In this short comment I want to focus on the book’s central claim, not so much to summarily disagree with it—in fact to some extent I agree with the claim—but rather to highlight why I think it might be glossing over some important issues from the perspective of international law. Such glossing over may weaken the central claim, which is made with great force. As a (self-proclaimed) positivist international lawyer I found some of the arguments on which the central claim is based hard to digest.

The first point that I want to raise is about the ‘contractual’ paradigm of international law (and dispute settlement) and the move to a ‘rule of law’ paradigm (and public law functions). I should say at the outset that I find terms like ‘rule of law’ inherently suspicious, precisely because they operate as shibboleths for something good without having any agreed content—except perhaps in the broadest possible sense. More on this below. But there is also a problem with the contractual paradigm and ‘new-style’ international courts as an indicator of moving away from it. Well, we are and we aren’t moving away from it, for one, and it is not international courts that predominantly signify whatever move there is, in my view.

Whether we are moving away from a contractual conceptualisation of international law, and whether this is a new development signified by the rise of ‘new-style’ courts depends, first, on what we understand as such a contractual paradigm. Karen seems to be focusing a lot on treaty obligations (which in the first instance are contractual in the broadest sense) and indeed on reciprocal obligations, even arguing at some point that the violation of a contractual obligation ‘dissolves’ the counterparty’s obligation—which it does not, and in any event not automatically. But we have been moving away from this narrowly-conceived contractual paradigm since the late 40s; suffice it to mention here the Reservations to the Genocide Convention Advisory Opinion and the Barcelona Traction Judgment, to take just examples from the oldest-style permanent court you could imagine – the ICJ. The point is that this has not really translated in any significant change in locus standi for actors other than (directly injured) States except in the example of the very particular courts that Karen deals with in her book.

This brings me to the second part of the problem. The book is built around case studies of court decisions which support the main claim. One salient feature of the case studies is that they come from courts with ‘compulsory jurisdiction’. However, the case studies mainly come from courts of Regional Economic Integration Organisations, which have a heavy focus on economic matters. They are complemented by decisions from courts and tribunals dealing strictly with economic law issues, as in the case of WTO or NAFTA dispute settlement. The only outliers are a few human rights law cases (some still coming from such REIO courts, like the ECJ or the ECOWAS court) and a couple of cases from international (or internationalised/hybrid) criminal courts. If we discount the two international criminal law cases and the one from the Inter-American Court of Human Rights, we are essentially left with case law from courts dealing with economic matters, and sometimes, due to the strong integrationist pull that REIOs exert, also with matters of human rights as a corollary of economic integration.

In this context, it seems to me that any general claims about a fundamental paradigm shift in international law would be exaggerated. Specific interests are at play in the context of economic law and economic integration, which cause States to allow international courts to penetrate deeply into the domestic sphere (and even then, not without occasional resistance). This is because States expect (rightly or wrongly is another matter) significant benefits from trade liberalisation and/or economic integration, and hence accept far-reaching inward-looking international obligations (ie, obligations demanding particular action within the domestic legal order) coupled with strong monitoring. In this latter connection, the jurisdiction of such courts is only ‘compulsory’ in the broadest, non-technical sense: it is still subject to State consent, except that the consent is provided at the outset, at the point of joining the particular (economically-focused) regime: the WTO, or NAFTA, or the EU, or another REIO.

The difficulty with generalising from such a sample (and the difficulty with playing a bit fast-and-loose with positive international law) is evident in Chapter 8 on ‘Constitutional Review’. It is first indicative that the first type of such ‘constitutional review’ identified by Karen is ‘supranational’ (read: REIO) review, while the second is ‘domestic’. Briefly, the first type refers to an international (supranational?) court invalidating an international (supranational) decision, while the second type refers to an international court invalidating domestic decisions. With respect to the first type, it should be noted that it is in no way peculiar (even though it is relatively rare) that a court be given express power to invalidate or declare without force decisions of other organs of the organisation of which itself is an organ. What is peculiar is that the Kadi case is used an example: not an example of the ECJ striking down an EU act (which it did) but of the ECJ striking down a UN act (which it did not). No doubt the ECJ’s decision in Kadi mobilised ‘compliance constituencies’ and caused significant pressure to be put on the Security Council (which indeed, in part responding to Kadi, reformed the relevant sanctions regime). But this does not constitute ‘constitutional review’ in any sense. It can be seen as a decentralised reaction to illegality, or it can be seen as a dualist regression, or what have you. But it did not invalidate in any way the Security Council resolutions at play, nor would we ever consider that the UK Supreme Court, which by and large did the same in Ahmed (ie, strike down the UK administrative act implementing the Council resolution), constitutionally reviewed and invalidated Security Council decisions. As to the ‘domestic’ type, the examples are but examples of the normal operation of international rules and international decisions which cannot penetrate the domestic legal order. The international court may clarify what the rules entail, and even find that a particular domestic act needs to be adopted or withdrawn in order to conform to the international obligation, but it cannot adopt or withdraw/invalidate the domestic act itself. How different is this from the ICJ finding that an arrest warrant violates international obligations and thus, in the context of offering reparation—juridical restitution—within the normal rules of State responsibility, needs to be withdrawn? My point is that I don’t believe that there is no alternative to constitutional review except an international organ being legibus solutus (see p 295): the normal rules of international law allow for decentralised reactions and may very well explain the instances discussed by Karen. More importantly, they would not need to do so on the basis of some fuzzy hierarchy—on p 294 for example Karen argues that international judges can decide on a case-by-case basis whether an international rule trumps a specific domestic rule and that they can conduct a proportionality and balancing analysis to resolve conflicts among disparate legal provisions. But this is too general and leaves way too much leeway to the judges, more than any domestic constitutional review analogy benefiting from a set hierarchical ordering of rules.

My final point relates to the move to a ‘rule of law’ paradigm through ‘new-style’ international courts. Indeed Karen challenges certain stereotypes about international courts, but in my view she implicitly accepts others. One such stereotype is that international law is a force for good, and indeed inherently good. This is evident when she says that we may want to ‘use international legal mechanisms to enhance the influence of international law in domestic and international politics’ (p 30). Note that it is the influence of international law that we want to enhance. But why? International laws are only as good or as bad as we/our States make them, and there seems to be nothing inherently good about them tout court. We can of course discuss which rules may be good and which ones bad, but that is a different discussion. Unless of course we accept them all as good—which is something I would dispute, but which Karen seems to accept: she writes for example that ‘economic and political liberalism is written into the DNA of international law’ (p xviii) and that we want to ‘alter the balance in the direction inscribed in the DNA of the law by the law’s authors’ (p 23). But I take exception on two fronts. The first is that to accept something as ‘written in the DNA of the law’ does away summarily with the inherent indeterminacy in every legal provision, and the important role of the interpreter—and even more so the authoritative interpreter installed by the law. The second, perhaps even more fundamental, is that economic, and to a lesser extent political (depending on what meaning we give to it) liberalism is an unmitigated force for good.