Vol. 30 No. 11 (December 2020) pp. 161-164INTERNATIONAL COURT AUTHORITY, by Karen J. Alter, Laurence R. Helfer and Mikael Rask Madsen (eds.). Oxford: Oxford University Press, 2018. 496pp. Cloth $105.00. ISBN: 9780198795582. Paper $42.95. ISBN: 9780198795599.
Reviewed by Henry F. (Chip) Carey, Department of Political Science, Georgia State University. Email: hcarey@gsu.edu.
The remarkable and pathbreaking book, INTERNATIONAL COURT AUTHORITY, is based on world-class scholars convening in several sets of workshops to develop conceptual working papers. It provides a conceptual framework to evaluate key functions and effects of international courts (ICs). These are regional and multilateral/global law tribunals for prosecuting crimes or adjudicating international trade law and human rights violations in a comparative perspective. The three primary traits analyzed are one primarily exogenous factor, context, and two combined exogenous and endogenous factors, authority and power. The social science analysis used focus on what lawyers consider de facto legal rule, rather than the legal approach adopting de jure evaluations of what is the law. The social science analysis the authors use focuses on what lawyers consider de facto legal rule rather than de jure evaluations of the law. To some extent, this approach is distinguished from different sets of public law concepts, political versus analytic jurisprudence, or attitudinal research on judicial decision-making. The concern here is how and why those actors interacting with these courts respond. It asks how behavior is changed, based primarily on the Weberian concept of authority and its sociological analyses of the role of law and courts, and then evaluating how those who come before the courts respond to their decisions. The conclusions from the book’s impact analysis do not extend more broadly on the public. We certainly learn much more about the contextual factors that shape how laws are actually understood and implemented. This is a challenging, if not audacious, attempt for a worldwide survey, given the size and variation in world contexts along with the varying missions, traits, and age of the courts themselves.
Legalization, as formulated by Abbott, et al. (2000), is arguably the primary conceptualization of not only these courts endogenous traits but also their impacts on international politics and society. This is particularly the third IV, delegation. However, this book advances its first two IVs, obligation and precision variables, both of which can be understood in de jure and de facto terms but were only developed over two decades ago in de jure terms.
The framework adopted from a dozen case studies posits that direct stakeholders in litigation (“narrow authority”) are the primary context, followed by similar actors with the same potential conflicts (“intermediate authority”). More general civil society actors in academia are the legal profession and industry associations (“extensive authority”). States are seen as veto players, not as reinforcers of legal obligation, legitimacy, and authority. All four of these levels of authority are interdependent. They are prone to complex views of the courts, not simply accepting or rejecting authority, but obeying or disobeying court orders in whole or in part. They do this not only with their own agency, but also to the extent that the other three levels of authority reinforce court judgements, are indifferent to [*162] them, or reject all or part of these decisions. reinforced or indifferent or rejecting part or all of these aspects of any court judgment. The interdependent role of the state, which is undertheorized in this study, can often be a primary factor in reinforcing court judgements. This occurred at the height of the liberal international order, following both the end of World War II and then beginning in the late Cold War under the Bush-Gorbachev New International Order. The implicit conclusion of the study is that courts are quite different from other forms of multilateralism. Instead, they are more similar to supranational organs like the European Parliament or Commission, the Parliamentary Assembly and Council of Ministers of the Council of Europe, and the secretariats of the EU, the UN, the OAS and the African Union. Moreover, courts are also implicitly different from intergovernmental organizations that represent the interests of states more than those representing the international organizations, like the UN Security Council and General Assembly.
Some of the fascinating case studies support the model presented by the editors and authors, but others do not. Certainly, the role of states in the Caribbean Court of Justice are influential in emphasizing the member states’ interests in controlling drug trafficking demonstrates the authority of that court is dependent on fulfilling that political goal. According to Caserta and Masken (see Chapter 7), the Court is more focused on establishing autonomy, first from the Judicial Committee of the Privy Council (JCPC), which had been the highest court in the common law world of many English post colonies. As the court became independent it began establishing laws governing both the court’s role as an appellate body from national courts that have left the JCPC as well as original jurisdiction of the revised treaty of Chaguaramas, which governs the Caribbean Community (known as CARICOM). These small states from the Commonwealth Caribbean like Belize and Guyana have been held liable for election irregularities. It is interesting to compare this court’s independence from main human rights court, the JCPC from which it departed, with the Court of Justice of the European Union (ECJ), which chose to adopt the jurisprudence of the European Court of Human Rights (ECHR), which is the judicial organ of the Council of Europe.
The number and geographic reach of the courts in this volume is quite extraordinary. There is possibly no better study of such courts, ranging from the transnational (viz., the International Criminal Court (which the Trump administration has attempted to sanction because of its investigation into US war crimes)), the International Court of Justice and Islamic Law, the World Trade Organization’s Dispute Settlement Body (which since this book’s publication, is threatened with extinction by the failure of the Trump administration to appoint appellate judges), regional courts in the Americas (the aforementioned CCJ, the Andean Tribunal of Justice, and the InterAmerican Court of Human Rights), Europe (the ECHR, and the ECJ) and Africa (the East African Court of Justice, the ECOWAS Community Court of Justice, the OHADA Common Court of Justice, and the SADC Tribunal). Space limitations in this review prevents a detailed discussion of these individual courts. Not included, for example, are the African Court of Human and Peoples Rights, the International Tribunal for the Law of the Sea, or the ASEAN Intergovernmental Commission on Human (which admittedly is not a court, though one could argue that the non-compliance and impunity of Russia with the ECHR rulings on matters like its violent human rights violations in the Caucuses, or the US impunity for torture before the same court [*163] (the US has observer status in the CoE and is therefore a defendant), suggests that courts without authority on at least some issues may not be altogether than commissions, such as the InterAmerican Commission on Human Rights)).
The greatest conceptual developments of the book are its third and fourth parts, which present thematic comparisons of these courts. The book provides important insights into the nature of their authority (command versus reflexive), the conditions when de facto authority has been achieved, and the specific, dramatic effort to use courts as “truth telling devices” in order to socialize member states and their subunits to abide by supranational standards and authority. It would be unfair to criticize the book for omissions, given the lengths to which it surveyed this vast terrain. However, it would be helpful to have done a comparison of the dozen courts according to their size, jurisdiction, number of cases, compliance with decisions, and similar dimensions. A major question that can be raised, as suggested by Ian Hurd’s chapter (see Chapter 22), that in attempting a qualitative analysis of compliance, that court authority is the causal agency. However, this is by no means sure. Given the lack of clear data on compliance, it is perhaps claiming too much to assume that courts are generating a degree of compliance as a result of their authority. This is why the ambitious development of a conceptual landscape of the context in which authority is constructed appears to omit a causal analysis, as well as an operational definition of how authority is measured.
Authority, the main dependent variable, is a subjective concept much like legitimacy (its Weberian cousin). The summation of the contextual factors in the book probably could have been introduced explicitly as conceptual and operational variables, around which every chapter could conduct explicit hypothesis tests. The qualitative methods are supported by some descriptive statistics, but the causal arguments, while plausible if not convincing in most cases, still lack, in most cases, formal, rigorous tests to disconfirm hypotheses. Nor do the sources rely on statistical analyses. This partly reflects the paucity of quantitative studies on the impacts of international courts. In addition, the framework for the book, which is a strength, contributes a new conceptual framework for authority but lacks a consistent definition of authority throughout the book.
The book, nevertheless, already has enormous scope and future work can benefit from its thick description of each court and the contexts in which they operate. Future work might use this contextual framework to see how it affects the practice of, for example, “forum shopping,” how do plaintiffs choose courts in which to litigate, including not only overlapping courts. While it has been studied how these courts interact with each other jurisprudentially, future research could analyze (1) their varying authority; the interaction of de jure with de facto realities (do judges make strategic decisions when faced with non-compliance); and (2) the extent to which judges are taking and deciding cases (as the EU Court of Justice has been studied). Do they decide cases because of its legal structure of superiority, or because other EU legislative and executive bodies, and/or European national states are operating in a vacuum and not making and/or implementing policy?
The reader is left questioning the conditions under which growth in judicialization and legalization results in more authority. Is authority, as implied by the book, the chicken or the egg of increased judicialization? The direction of causality if one [*164] had a more causal theory about the extent to which there is compliance with these courts.
It is somewhat curious that the conceptualization for analyzing the context in which these ICs operate was not based on any of the concepts utilized in the study of international and comparative politics, such as realism, liberalism, constructivism, international regimes, international institutions, any of the more skeptical approaches from cosmopolitanism, critical theory, or any of the more rationalist approaches, such as policy analysis, regionalist approaches, cultural analysis, or local approaches. For example, social learning theory would underscore the identities, ideas and social learning processes of stakeholders, interest holders and the more general public. Realists would hold that states will withhold jurisdiction or compliance when key security interests are at stake. As German Chancellor Theobald Bethmann-Hollweg cited military necessity to justify invading Belgium, “Necessity knows no law.” In addition, more explicitly comparative views of the different regions, compared with the substantive mission of the particular courts, ought to be systematically compared for the different impacts on court authority. Perhaps the cultural or social learning dimensions of transnational legal processes, as Harold Koh (1996) has argued, might explain variations in the authority of these different international courts.
REFERENCES:
Abbott, Kenneth W. Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal. 2000. “The Concept of Legalization.” International Organization. 54(3): 401 – 419.
Koh, Harold H. 1996. “Transnational Legal Process.” Nebraska Law Review. 75: 181 – 207.
© Copyright 2020 by the author, Henry F. (Chip) Carey.
