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Inspired by Karen Alter’s new book, The New Terrain of International Law: Courts, Politics, Rights, which won this year’s ASIL Certificate of Merit for a preeminent contribution to creative scholarship, this panel discussed the nascent field of international adjudication and how its interdisciplinary perspective has impacted and will impact the practice and study of international law moving forward. The panel was moderated by Duncan Hollis (Temple University).
Karen Alter (Northwestern University) began the discussion by providing a brief précis of her work, which essentially focused on two broad questions: (i) how the politics of international law changes when it becomes enforceable through courts; and (ii) how the very limited power of judges and courts is translated into a political force. Her work begins with a heuristic mapping of 24 international courts based on two main design features—compulsory jurisdiction and individual right of access. Based on a comparative analysis of these categories, Alter develops a view of how international law changes politics in three ways: with the court as the inter-state arbiter, by way of the multilateral politics theory, and through the transnational politics mechanism.
Proceeding from Alter’s introduction, José Alvarez (NYU) presented the analytical perspective of international courts as international organizations. In thinking about the future, he encouraged a deeper analysis of the role of courts within the system of global governance, focusing on how specific design features would impact rule of law values, accountability and transparency. Relatedly, he foresaw a greater debate surrounding how international courts affect the ability of states to regulate and the resultant risk of sovereign backlash -- a trend already apparent in the investment arbitration system. Alvarez also urged more scholarly consideration of the development of rules and procedures within international courts that limit or expand the authority of judges and arbitrators.
Mark Pollack (Temple University) provided an insightful critique of the existing interdisciplinary scholarship in this field, which he broadly divided into the three areas of studies on international court design, behavior, and impact. Pollack lauded the numerous scholarly attempts to develop heuristic tools that classify courts based on their design features. He cautioned, however, that such studies tended to either take those features for granted, or ignore other important design features. Among other things, Pollack also advocated for studies on the impact of international courts to focus more on how states, and the various “compliance constituencies” therein, receive and implement international decisions.
Recognizing how Alter’s book has opened up the field of international law and politics to a whole new vista of academic possibilities and scholarly thought, Alexandra Huneeus (University of Wisconsin) contributed to the discussion by proposing four further areas of research and scholarship. First, Huneeus pointed to the interactions between international courts and how their processes and decisions affect one another. Despite existing concerns of forum shopping and “turf wars” arising due to the proliferation and lack of hierarchy amongst international courts, Huneeus noted that more often than not international courts actually accommodate and fortify one another. The second area looks at the interactions between international courts and lower courts. The third area is the impact of international courts outside the judicial realm, including, for example, the influence of the IACtHR's and ICC’s decisions on non-state actors such as the FARC guerrillas. Finally, Huneeus urged scholars to look at domains that have not been judicialized and question why these negative legal spaces persist.
Overall, the panelists agreed that the young field of “international adjudication” certainly exists, and is likely to expand both in scope and depth in the years to come. Understanding it will take serious study but promises many important insights.
Christel Tham is an associate in the New York office of Debevoise & Plimpton LLP.