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Taking the opportunity of this LJIL special lecture, Professor Alter provides an interdisciplinary retrospective that explains, defends and critiques six common visions of international law: The naïve political scientist’s expectations about international law as a fixed reflection of political choices; the legal formalist and structural theorist who believes that formal rules, institutions, and processes should generate similar outcomes in different parts of the world; the Western centric scholar’s notion that one can draw general lessons based on European and American experiences; the liberal internationalist who believes that multilateral processes generate consent based agreements and outcomes; the law and society scholar whose focus on the local can minimize international structural elements; and the international legal sociologist who believes that meanings and practices constitute international law. After reflecting on what each vision captures and misses about international law, Professor Alter identifies the policy stakes of residing within a vision. While we need to draw from multiple visions to understand the hybridity of international law, we also need to understand the implicit presumptions of each vision, as these presumptions generate contradictory prescriptive recommendations.
The After Fragmentation special issue unites political science conversations about regime complexity with legal/normative conversations about global constitutionalism through a focus on the generation and resolution of interface conflicts, defined as moments when overlapping elements or rule incompatibilities generate actual conflicts. Yet scholars choosing among these two perspectives actually have different objectives. After reviewing the two literatures, I argue that this special issue is closer to the global constitutionalism perspective, which generally seeks legitimated order. By contrast, the regime complexity literature asks how does the fact that global governance is spread across multiple institutions in itself shape cooperation politics. Investigating what it means to get ‘beyond fragmentation’, I suggest that the potential or actuality of rule conflicts is not necessarily a problem because conflicts are a normal and even salutary aspect of politics. If conflict is not the concern, then what should we be worrying about? Both perspectives, I argue, are amoral because they normalise and help justify an international order where responsibility is spread across institutions, promoting order while failing to address fundamental problems affecting people and the world. In this respect, resolving rule conflicts does not get us beyond fragmentation.
We investigate gender disparities in status construction in American political science, focusing on three questions: 1) Do institutions within the discipline of political science—including departments, APSA, editorial boards, and academic honor societies–reflect or remedy gender disparities that exist in many forms of recognition, including appointments to top leadership and citations? 2) Are institutions with centralized and accountable appointment mechanisms less gender skewed compared to networked and decentralized selection processes where implicit bias may go unchecked? 3) Does leaning in help? Does the effort of women to publish and to claim a seat at leadership tables increase the likelihood that higher-level status positions will follow? We find that the distribution of highest-status positions is still gender skewed, that women are over-represented in positions that involve more service than prestige, that “leaning in” by serving as section chair, on editorial boards, or on academic councils is not necessarily a gateway to higher-status appointments, and that accountability promotes greater gender parity. The study raises questions about the goal of gender parity when it comes to lower-status service, and about the types of contributions our discipline rewards.
This review essay examines three intellectual histories focused on fundamental transformations of international law in the early twentieth century. Juan Pablo Scarfi's Hidden History of International Law in the Americas is most interested in debates about a Pan-American international law, meaning the idea that international law might work differently in different regions, which was debated but eventually gave way to the change that Arnulf Becker Lorca, a Lecturer in Public International Law at Georgetown Law, discusses. Becker Lorca's Mestizo International Law is most interested in how the conception that international law applied only to civilized nations transformed into the modern conception that presumes sovereign equality. The Internationalists, by Oona Hathaway and Scott Shapiro, respectively the Gerard C. and Bernice Latrobe Smith Professor of International Law and the Charles F. Southmayd Professor of Law and Professor of Philosophy at Yale Law School, and seeks to understand how the normal (and legal) recourse to force in international relations was replaced by an international law that bans the use of force, except in self-defense. Ideas regarding these issues started to evolve in the late 1800s, but the transformative debates occurred at roughly the same time because the Hague Peace Conferences and the League of Nations allowed contestations over old versus updated understandings of international law to flourish.
There has been a paradigmatic change in number, design, usage, and political influence of international courts since the Berlin Wall fell in 1989. Before the Cold War ended, international courts (ICs) were primarily voluntary dispute settlement bodies, available should governments desire a legalized solution to a transborder disagreement. These “old style” international courts were pretty much unable to meaningfully alter domestic and international politics, because governments would block inconvenient cases from proceeding. The exception to this rule of ICs with voluntary or revocable jurisdiction was the European Union's Court of Justice (ECJ). Already in the 1980s we could see litigants using the European community's legal system to challenge domestic policies with which they disagreed. Women in Britain demanded greater pay equity and challenged a tolerated practice of dismissing pregnant women. Student groups in Ireland demanded the right to publish a “how to” guide to go to the United Kingdom to get an abortion. More recently, Lithuanian firms challenged the tactics Swedish unions used to shut down construction projects staffed by lower paid Lithuanian workers.
In the 1980s, the European Court of Justice was seen as a strange international court. It had nonrevocable compulsory jurisdiction, a commission that could raise infringement suits against states, and preliminary ruling mechanism that allowed private litigant complaints to reach the European court. Today, there are more than two dozen permanent international judicial bodies. Most of these courts resemble supranational European legal models. Eighty-eight percent of operational ICs (twenty-one of the twenty-four permanent ICs) have a broad compulsory jurisdiction and twenty-one out of twenty-four authorize nonstate actors – supranational commissions, prosecutors, and/or private actors – to initiate litigation. Compulsory jurisdiction means that defendant states cannot block litigation from proceeding, and wider access potentially allows issues that concern peoples rather than states to be adjudicated. A final difference is that increasingly delegation to ICs is coupled with embedding international law into national legal orders. Treaty ratification has always involved making the international treaty part of domestic law. But the European legal model combines embedded supranational law with international legal oversight of how this law is interpreted and applied domestically. Private litigants or international commissions can trigger this oversight, pursuing cases that states might avoid raising, and framing legal challenges boldly to evoke rulings with precedential value.
The Community Court of Justice of the Economic Community of West African States (ECOWAS Court) is an increasingly active and bold adjudicator of human rights. Since acquiring jurisdiction over human rights complaints in 2005, the ECOWAS Court has issued numerous decisions condemning human rights violations by the member states of the Economic Community of West African States (Community). Among this Court’s path-breaking cases are judgments against Niger for condoning modern forms of slavery and against Nigeria for impeding the right to free basic education for all children. The ECOWAS Court also has broad access and standing rules that permit individuals and nongovernmental organizations (NGOs) to bypass national courts and file suits directly with the Court. Although the Court is generally careful in the proof that it requires of complainants and in the remedies that it demands of governments, it has not shied away from politically courageous decisions, such as rulings against the Gambia for the torture of journalists and against Nigeria for failing to regulate multinational companies that have degraded the environment of the oil-rich Niger Delta.
As this volume demonstrates, scholarly interest in international law's intersection with international politics is growing. Much international law (IL) scholarship excludes international courts (ICs) from the conversation, dismissing as irrelevant or dysfunctional the international legal institutions that elaborate and help enforce the law. The proliferation, rising usage, and growing political importance of international courts around the world makes this standard disclaimer increasingly less viable. Many domains of IL – international economic law, human rights law, criminal law, administrative law, and even constitutional law – have become judicialized. The judicialization of international relations (IR) occurs when courts gain authority to define what the law means and where litigation becomes a useful way to reopen political agreements. Negotiations among actors become debates about what is legally permissible, and politics takes place in the shadow of courts, with the lurking possibility of litigation shaping actor demands and political outcomes.
In an effort to broaden the debate about the role of ICs in the international legal system, this chapter draws from a study of the universe of operational ICs, examining ICs as a category of actors. Section I, “The Twenty-First Century International Judicial Order,” gives an overview the international judicial system as it exists today. Section II, “The Four Roles of International Courts,” describes the four roles that states have delegated to ICs. The enforcement role has ICs assessing state compliance with IL. The administrative review role involves ICs reviewing the decisions of administrative actors in cases raised by private litigants. The constitutional review role has courts assessing the legal validity of legislative and government actions vis-à-vis higher-order legal obligations. The dispute settlement role is perhaps the broadest judicial role, in that ICs have the general jurisdiction to issue binding interpretations in any dispute that is brought. After defining the four roles, I map these roles onto the universe of ICs in operation as of 2006, reporting the result of a coding of the statutes where the jurisdictions of the twenty-five ICs are defined.
The proponents of international courts (ICs) expect that creating formal legal institutions will help to increase respect for international law. International relations scholars question such claims, since ICs have no tools to compel state compliance. Such views are premised on the notion that states have unique preferences that ICs must satisfy in order to be effective. The tipping point argument is premised on the notion that within each state are actors with numerous conflicting preferences. ICs can act as tipping point actors, building and giving resources to compliance constituencies—coalitions of actors within and outside of states—that favour policies that happen to also be congruent with international law.
Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts' authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ's jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This comparison of two structurally identical international courts calls into question prevailing explanations of ECJ lawmaking, and it suggests that prevailing scholarship puts too much emphasis on the self-interested power-seeking of judges, the importance of institutional design features, and the preferences of governments to explain lawmaking by international courts.
The increasing density of international regimes has contributed to the proliferation of overlap across agreements, conflicts among international obligations, and confusion regarding what international and bilateral obligations cover an issue. This symposium examines the consequences of this “international regime complexity” for subsequent politics. What analytical insights can be gained by thinking about any single agreement as being embedded in a larger web of international rules and regimes? Karen Alter and Sophie Meunier's introductory essay defines international regime complexity and identifies the mechanisms through which it may influence the politics of international cooperation. Short contributions analyze how international regime complexity affects politics in specific issue areas: trade (Christina Davis), linkages between human rights and trade (Emilie Hafner-Burton), intellectual property (Laurence Helfer), security politics (Stephanie Hofmann), refugee politics (Alexander Betts), and election monitoring (Judith Kelley). Daniel Drezner concludes by arguing that international regime complexity may well benefit the powerful more than others.
Forty years ago, the small and underdeveloped nations on the mountainous western edge of South America formed a regional integration pact to promote economic growth, regulate foreign investment, and harmonize national laws. Overall, their enterprise has not turned out well. Riven by political schisms, economic shocks, and weak domestic legal and judicial systems, the five principal countries of the Andean Community—Bolivia, Colombia, Ecuador,Peru, and Venezuela— have failed to live up to their potential as South America's second largest trading bloc. The member states have relaunched the Andean integration project and revised its policies on multiple occasions, with at best only mixed results. Not surprisingly, most commentators have ignored the Andean Community or dismissed it as a failure.
To determine effect of environmental exposure on the survival and infectivity of hepatitis C virus (HCV).
Three aliquots of chimpanzee plasma containing HCV and proven infectious HCV inoculum were dried and stored at room temperature, 1 aliquot for 16 hours, 1 for 4 days, and 1 for 7 days. A chimpanzee (CH247) was sequentially inoculated intravenously with each of these experimental inocula, beginning with the material stored for 7 days. Each inoculation was separated by at least 18 weeks of follow-up to monitor for infection. The concentration of HCV RNA was measured and quasi species were sequenced for each experimental inoculum and in serum samples from CH247.
Evidence of HCV infection developed in CH247 only after inoculation with the material stored for 16 hours. No infection occurred after inoculation with the material stored for 7 days or 4 days. Compared with the original infectious chimpanzee plasma, the concentration of HCV RNA was 1 log lower in all 3 experimental inocula. The same predominant sequences were found in similar proportions in the original chimpanzee plasma and in the experimental inocula, as well as in serum samples from CH247.
HCV in plasma can survive drying and environmental exposure to room temperature for at least 16 hours, which supports the results of recent epidemiologic investigations that implicated blood-contaminated inanimate surfaces, objects, and/or devices as reservoirs for patient-to-patient transmission of HCV. Healthcare professionals in all settings should review their aseptic techniques and infection control practices to ensure that they are being performed in a manner that prevents cross-contamination from such reservoirs.
Trading Voices: The European Union in International Commercial
Negotiations. By Sophie Meunier. Princeton: Princeton University
Press, 2005. 248p. $35.
One often hears that integration in Europe magnifies the political
voice of European countries on the international scene. The larger size of
the European Union market surely makes investment in any particular
European country more attractive, and importers are certainly more eager
to satisfy a regulatory requirement if doing so will give them access to
the entire European market. But does unity bring negotiating clout, too?
This is the question Sophie Meunier investigates in her book Trading
International courts (ICs) clearly fit the paradigm of delegation examined in this volume. States operating as a collective principal create ICs through a revocable delegation contract; appoint IC judges; and can write or rewrite the mandate and laws that ICs interpret. Principal-agent (PA) theory expects courts to be among the more independent “agents,” intentionally so. As Giandomenico Majone argues, in delegation to enhance the credibility of a principal the “Fiduciary Agent” is made independent because “an Agent bound to follow the directions of the delegating politician could not possibly enhance the commitment” (Majone 2001: 110). Thus intentionally principals allow judges to be fired only for egregious acts unbecoming to their office, and judicial salaries are protected. Still, PA theorists expect states to have substantial tools of control because international judicial terms are short (4–8 years), because international judges may worry about their professional futures including whether or not their term is renewed, and because states can sanction ICs through rewriting their mandate, legislating to reverse their rulings, or through non-compliance.
While these expectations are shared by most PA theorists, studies employing PA theory to analyze ICs have offered contradictory predictions about whether and when we should expect IC autonomy. Geoffrey Garrett and Barry Weingast have argued that the European Court of Justice (ECJ) has far less autonomy than national courts because the ECJ fears re-contracting. They assert that ECJ decisions mainly select among the range of outcomes the most powerful states implicitly want (Garrett and Weingast 1993: 201).