Reading 1: Alter
Alter, Karen (2014). "Chapter 1: The New Terrain of International Law: Courts, Politics, Rights", The New Terrain of International Law: Courts, Politics, Rights. Princeton University Press.
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. At the end of the chapter, I have appended an expanded table of context that includes abstracts of the book chapters and a case study index.
Why this reading?
Alter here argues that a new set of ICs require us to rethink the functions and impact of the international judiciary for domestic and international politics. Her claims of a 'paradigm shift' are based on several features of the new ICs, such as their independence of states, that are relevant across several disciplines. These new ICs may have intriguing implications for our understanding of sovereignty, the prominence of states as actors in the international system, judicialization of international relations, the social legitimacy of ICs, and possibly for the standards we use to assess their normative legitimacy.
Questions for discussion
- Which are the features of the new-style ICs which lead Alter to conclude that international law is no longer (only) contract based to rule-of-law based? Is that characteristization of rule of law plausible? Is it relevant for discussions of the 'constitutionalization' of international law?
- Is the 'paradigm shift' equally prominent across issue areas? What are the implications if the shift occurs generally, versus if the shift only occurs in some sectors?
- Alter identifies four judicial roles. Is this a convincing and exhaustive taxonomy which other authors share? She claims that some of these roles are mainly "other-binding" that serve to extend the central state’s power, while other roles are "self-binding" that check the state’s own exercise of power. Each ICs may serve several such roles, and this explains the power states have granted each. Does this match our research regarding ICs in different sectors?
- Which mechanisms or levers does Alter elaborate to explain the impact of ICs? Which of these apply to ICs in different sectors? How does that inventory compare to other scholars' accounts - such as those of Beth Simmons or Xinyuan Dai?