Challenging the Role of Judges in Slaughter's Liberal Theory of International Law

Leiden Journal of International Law

Volumn 18, Issue 1, 2005, Pages 1-30

  Mills, Alex ^a   Stephens, Tim ^b  

^a GONVILLE AND CAIUS COLLEGE   (United Kingdom)

^b UNIVERSITY OF SYDNEY   (Australia)

Author keywords

globalization; international courts and tribunals; international relations; liberal theory

Indexed keywords

EID: 34248039721     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156504002328     Document Type: Article

References (108)

1. Foracomprehensivelistof thesebodies see C.Brown,'The Proliferationof InternationalCourtsandTribunals: Finding YourWay Through theMaze’, (2002) 3Melbourne Journal of International Law 453.
2. See in particular (1999) 31 (4) The New York University Journal of International Law and Politics (special issue); T. Buergenthal, ‘Proliferation of International Courts and Tribunals: Is It Good or Bad?’, (2001) 14 LJIL 267; P. Sands, R.Mackenzie, and Y. Shany (eds.),Manual on International Courts and Tribunals (1999).
3. J. I. Charney, ‘International Law andMultiple International Tribunals’, (1998) 271 Recueil des cours 115; idem, ‘The Impact on the International Legal System of the Growth of International Courts and Tribunals’, (1999) 31 New York University Journal of International Law and Politics 697 (concluding that there is no evidence of any substantial fragmentation of international law).
4. Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003); and V. Lowe, ‘Overlapping Jurisdiction in International Tribunals’, (1999) 20 Australian Yearbook of International Law 191.
5. M. Koskenniemi and P. Leino, ‘Fragmentation of International Law? Postmodern Anxieties’, (2002) 15 LJIL 553.
6. L. R. Helfer and A.-M. Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’, (1997) 107 Yale Law Journal 273, at 387.
7. Although it was the world's first permanent international court it was not the first permanent international court in the world. That honour belonged to the Central American Arbitral Tribunal (CAAT), established in 1902 by the Corinto Convention (Convention of Peace and Arbitration, opened for signature 20 Jan. 1902 (1901-1902 Parry's TS 357).
8. The lasting association of Wilson with liberal idealism should not be taken to imply that Wilson himself held all the views associated with that paradigmatic approach to international relations. For instance,Wilson (in contrast to his immediate predecessor,William Taft) was strongly anti-legalist and was opposed to the proposed PCIJ (at one stage in the drafting of the Covenant of the LeagueWilson removed the draft article which provided for its establishment): see J.W. Wheeler-Bennett and M. Fanshawe, Information on theWorld Court 1918-1928 (1929), 1-21, 147; A. Zimmern, The League of Nations and the Rule of Law 1918-1935 (1936). For an extensive discussion of the politics of the United States’ relationship with the PCIJ see M. Dunne, The United States and theWorld Court 1920-1935 (1988).
9. See R. O. Keohane, A. Moravcsik, and A.-M. Slaughter, ‘Legalized Dispute Resolution: Interstate and Transnational’, (2000) 54 International Organization 457 (using a liberal approach to understand the differing political dynamics of inter-state and transnational adjudication) 458, 469 (transnational dispute resolution involves individual/individual and individual/state cases across national boundaries adjudicated by an overarchingtribunal that isindependentandrenders decisionsimplementeddirectlybynational judiciaries). Of course these scholars are not alone in their attempts to understand transnational life: seeH.Koh, ‘WhyDo Nations Obey International Law?’, (1995) 106 Yale Law Journal 2599; and idem, ‘Transnational Legal Process’, (1996) 75 Nebraska Law Review 181.
10. ‘[F]ew nations will care to face the condemnation of international public opinion and disobey the judgment [of an international court]’:W. Taft, The United States and Peace (1914), 150, quoted in E. H. Carr, The Twenty Years’ Crisis 1919-1939 (1940), 43.
11. For a concise summary of the realism of Carr and Morgenthau see S. Burchill, ‘Liberalism’, in S. Burchill, R. Devetak, A. Linklater, M. Paterson, C. Reus-Smit, and J. True, Theories of International Relations (2001), 70-102, at 71-83.
12. H. Suganami, The Domestic Analogy andWorld Order Proposals (1989), 170-2.
13. Carr, The Domestic Analogy andWorld Order Proposals note 14, ch. 12.
14. Carr., at 249. In saying this Carr was echoing the views of Emerich de Vattel (1714-67), who originated the notion of non-justiciable disputes and insisted that while an arbitrated resolution to a dispute should be attempted, where a nation's ‘essential rights’ were threatened, ‘the Nation will take counsel only of its courage’, E. de Vattel, The Law of Nations or the Principles of Natural Law: Applied to the Conduct and to the Affairs of Nations and of Sovereign, trans. G. Fenwick (1916 [1758]), bk II, ch. XVIII, para. 331.
15. Carr, Carr note 14, at 253-4. There is a striking parallel here with Slaughter's acknowledgement that an effective transjudicial community will need to be constructed upon shared norms and commitments: see infra n. 89.
16. Carr, Carr note 14, at 258.
17. H.Morgenthau, Politics among Nations: The Struggle for Power and Peace (1951). However, it was for this reason also less cohesive. Although Morgenthau had been transformed from legalist to realist, there is a major tension in Politics among Nations between his largely positive and positivist discussion of the formal legal issues connected with the judicial function (219-28) and his forceful critique of the value of international courts (341-9). Morgenthau had trained as an international lawyer in Germany before emigrating to the United States in 1937 and beginning a new career as a founder of the realist school of international relations. His 1929 doctoral dissertation submitted to the University of Frankfurt Faculty of Law and later published was entitled Die internationale Rechtspflege, ihr Wesen und ihre Grenzen (1929). The work was reviewed by Hersch Lauterpacht in (1931) 12 British Yearbook of International Law 229. Demonstrating some prescience, Lauterpacht described the thesis as a ‘most scholarly, although somewhat negative, contribution’. For an overview ofMorgenthau's life and work seeM. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001), ch. 6. Suganami suggests that parts of Politics among Nations dealing with judicial settlement were largely based onMorgenthau's doctorate: Suganami, Carr note 16, at 99.
18. Morgenthau, Politics among Nations, Politics among Nations: The Struggle for Power and Peace note 21, at 219.
19. Politics among Nations., at 211.
20. Politics among Nations., at 224.
21. PCIJ Ser. A/B, No. 41.
22. Morgenthau, Politics among Nations, PCIJ Ser. A/B note 21, at 224.
23. Politics among Nations., at 343.
24. Koskenniemi, Politics among Nations note 21, at 442.
25. In this respect Slaughter relies heavily on the work of Michael Doyle, who examined inter-state wars from 1817 onwards: M. Doyle, ‘Kant, Liberal Legacies and Foreign Affairs’, (1983) 12 Philosophy and Public Affairs 205 (Part 1), 323 (Part 2). See also F. R. Tesó n, A Philosophy of International Law (1998), 11; idem, ‘The Kantian Theory of International Law’, (1992) 92 Columbia Law Review 53.
26. Slaughter, ‘International Law in aWorld of Liberal States’, this respect Slaughter relies heavily on the work of Michael Doyle, who examined inter-state wars from 1817 onwards note 11, at 509. See I. Kant, Perpetual Peace (1957 [1795]), 12-13.
27. Slaughter, ‘International Law in aWorld of Liberal States’, ‘International Law in aWorld of Liberal States’ note 11, at 511. For a critique of this notion of democracy as overly narrow see S. Marks, ‘The End of History? Reflections on Some International Legal Theses’, (1997) 3 EJIL 449.
28. A.Moravcsik, ‘Taking Preferences Seriously:ALiberal Theory of International Politics’, (1997) 51 International Organization 513.Moravcsik's approach, and Slaughter's development of it, are analysed as a purely empirical project in C. Reus-Smit, ‘The Strange Death of Liberal International Theory’, (2001) 12 EJIL 573, at 583, but we argue to the contrary in section 5 below.
29. Slaughter, ‘International Law in aWorld of Liberal States’, ‘Taking Preferences Seriously:ALiberal Theory of International Politics’ note 11, at 509.
30. ‘International Law in aWorld of Liberal States’., at 508.
31. Slaughter, ‘The Liberal Agenda for Peace’, ‘International Law in aWorld of Liberal States’ note 11, at 392.
32. Slaughter, ‘International Law in aWorld of Liberal States’, ‘The Liberal Agenda for Peace’ note 11, at 507.
33. ‘International Law in aWorld of Liberal States’., at 511.
34. I. Kant, Perpetual Peace: A Philosophical Sketch (1795), repr. in C. Brown, T. Nardin, and N. Rengger, International Relations in Political Thought: Texts from the Ancient Greeks to the FirstWorldWar (2002), 445.
35. Logically there would also seem to be a need for a body of law governing relations between non-liberal states, unless it is assumed that such relations are anomic. Slaughter does notmake this assumption; indeed, she suggests that given that relations between some non-liberal and liberal states might conform to the attributes of her hypothetical construct, it may be appropriate to devise some universal norms for all states, regardless of their democratic credentials: Slaughter, ‘International Law in aWorld of Liberal States’, Perpetual Peace: A Philosophical Sketch note 11, at 511.
36. Unsurprisingly, Slaughter concentrates on those types of transnational interactions which exemplify the liberal paradigm-choice as expressed through contract. In doing so, she risks neglecting both the potential role of diverse national public policy interventions in restricting that choice, and the range of non-contractual private international interactions, for example tort, delict, or restitution claims. However, Slaughter's vulnerability to this criticism is somewhat mitigated, given her acknowledgement of the importance of these factors in her second level of international law.
37. See the 1958 New York Convention. It has been argued that international commercial arbitration, at least in certain circumstances (e.g. in industries based on trust or iterated transactions), has gained the status of an independent system of dispute resolution: see, e.g., R. Banakar, ‘Reflexive Legitimacy in International Arbitration’, in V. Gessner and A. C. Budak, Emerging Legal Certainty: Empirical Studies on the Globalization of Law (1998); T. Carbonneau, LexMercatoria and Arbitration: A Discussion of the New LawMerchant (1998).
38. See also A.-M. Slaughter, ‘A Typology of Transjudicial Communication’, (1995) 29 University of Richmond Law Review 99.
39. A.-M. Slaughter and A. Stone, ‘Assessing the Effectiveness of International Adjudication’, (1995) 89 American Society of International Law Proceedings 79, at 91.
40. A.-M. Burley, ‘Toward an Age of Liberal Nations’, (1992) 33 Harvard International Law Journal 393, at 405.
41. Slaughter, ‘The Liberal Agenda for Peace’, ‘Toward an Age of Liberal Nations’ note 11, at 400 (emphasis added).
42. Slaughter, ‘The Liberal Agenda for Peace’ note 44, at 137.
43. A.-M. Slaughter, ‘A Liberal Theory of International Law’, (2000) 94 American Society of International Law Proceedings 240, at 246.
44. But see comments above, ‘A Liberal Theory of International Law’ note 43.
45. Slaughter, ‘International Law in aWorld of Liberal States’, But see comments above note 11, at 519.
46. ‘International Law in aWorld of Liberal States’., at 520.
47. ‘International Law in aWorld of Liberal States’., at 524.
48. Helfer and Slaughter, ‘International Law in aWorld of Liberal States’ note 6, at 387.
49. Slaughter, ‘International Law in a World of Liberal States’, Helfer and Slaughter note 11, at 532. E.g., on the issue of the Israeli-PalestinianWall, Slaughter's theory would seek to contrast the binding decision of the High Court of Israel (Beit Sourik v. Israel, HCJ 2056/04) with the Advisory Opinion of the ICJ in the Legal Consequences of the Construction of aWall in the Occupied Palestinian Territory (http://www.icj-cij.org/icjwww/icjhome.htm) (14 July 2004). An analysis of the High Court decision suggests that such a distinction would be less vulnerable to the criticism previously raised in J. E. Alvarez ('Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory’, (2001) 12 EJIL 183, at 215) in respect of Slaughter's reliance on an earlier decision (Public Committee Against Torture in Israel v. Israel,HCJ 51000/94) as evidence of transjudicial communication among judges of liberal states.
50. Slaughter, ‘International Law in aWorld of Liberal States’, ‘International Law in a World of Liberal States’ note 11, at 532 (emphasis added).
51. ‘International Law in aWorld of Liberal States’., at 533. This may be an implicit acknowledgement of the philosophical problems in achieving genuine communication or agreement between holders of different value systems, an issue discussedmore generally in section 4.
52. See alsoKeohane,Moravcsik,andSlaughter, supranote 10, at478('themorefirmlyembeddedaninternational commitment is in domestic law, the more likely is compliance with judgments to enforce it').
53. Helfer and Slaughter, alsoKeohane note 6.
54. Helfer and Slaughter, Helfer and Slaughter note 6, at 336.
55. For an exhaustive discussion of the politics of transnational and Helfer and Slaughternational adjudication see Keohane, Moravcsik, and Slaughter, Helfer and Slaughter note 10, at 476.
56. Helfer and Slaughter, For an exhaustive discussion of the politics of transnational and supranational adjudication see Keohane note 6, at 369. The level to which law is or ought to be insulated from politics is of course a point of some controversy to theorists who are not committed to procedural and institutional definitions of democracy.
57. Helfer and Slaughter., at 370.
58. Helfer and Slaughter., at 373.
59. Burley andMattli, Helfer and Slaughter note 60;Mattli and Slaughter, ‘Revisiting the European Court of Justice’, Helfer and Slaughter note 60.
60. Helfer and Slaughter, Burley andMattli note 6, at 373.
61. Slaughter, Helfer and Slaughter note 44.
62. Slaughter, ‘International Law in aWorld of Liberal States’, Helfer and Slaughter note note 11, at 524.
63. P. Allott, The Health of Nations: Society and Law Beyond the State (2002), 59.
64. Slaughter, ‘International Law in aWorld of Liberal States’, The Health of Nations: Society and Law Beyond the State note 11, at 535.
65. Keohane,Moravcsik, and Slaughter, ‘International Law in aWorld of Liberal States’ note 10, at 466.
66. Keohane., at 479. See alsoD.S.Sullivan, ‘Effective InternationalDisputeSettlementMechanismsandtheNecessary Condition of Liberal Peace’, (1993) 81 Georgetown Law Journal 2369 (liberal democracy is a necessary but not always sufficient condition for the creation of an effective, far-reaching international dispute settlement mechanism).
67. Alvarez, Keohane note 55, at 210.
68. See, e.g., Australian Conservation Foundation, ‘ACF Position on Australia-United States Free Trade Agreement’, Oct. 2003, at http://www.acfonline.org.au/docs/general/00493.pdf (22 Dec. 2004). It appears that partly as a result of such criticism an equivalent to Chapter 11 of the North American Free Trade Agreement was omitted from the US-Australia Free Trade Agreement, [2004] ATNIF 6 (to enter into force 1 Jan. 2005).
69. See S. Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2000), ch. 4.
70. A.-M. Slaughter, ‘Symposium: Globalization, Accountability, and the Future of Administrative Law: The Accountability of Government Networks’, (2001) 8 Indiana Journal of Global Legal Studies 347.
71. Marks, ‘Symposium: Globalization, Accountability, and the Future of Administrative Law: The Accountability of Government Networks’ note 76, at 90 (emphasis in original).
72. In relation to the limits of adjudication in international environmental law see T. Stephens, ‘The Limits of Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’, (2004) 19 International Journal ofMarine and Coastal Law 177.
73. Slaughter, ‘The Limits of Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’ note 60, at 218 (emphasis added).
74. ‘The Limits of Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’ note 60., at 217.
75. ‘The Limits of Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’ note 60., at 205.
76. B. Opeskin, ‘Globalisation and Constitutional Law’, in R. French, G. Lindell, and C. Saunders (eds.), Reflections on the Australian Constitution (2003).
77. Slaughter, ‘Globalisation and Constitutional Law’ note 60, at 194.
78. See also ‘Globalisation and Constitutional Law’ note 60 note 57.
79. T. Christiano, The Rule of the Many: Fundamental Issues in Democratic Theory (1996). See further Marks, also ‘Globalisation and Constitutional Law’ note 60 note note 76, ch. 3.
80. ‘A full-fledged community, however, requires norms and principles that are recognized by its members-shared precepts that bindthemas a community, rather thanmerely as a collective.Here the judges themselves might be hard pressed; each can testify to his or her individual experience but would have difficulty seeing the larger vision. As an academic observer, Iwould offer the following candidates as precepts of an emerging global community of courts.’ Slaughter, text accompanying note 67 The Rule of the Many: Fundamental Issues in Democratic Theory note 60, at 217.
81. Marks, ‘A full-fledged community, however, requires norms and principles that are recognized by its members-shared precepts that bindthemas a community, rather thanmerely as a collective note 32, at 470.
82. For such an approach see E.-U. Petersmann, ‘How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society’, (1998) 20 Michigan Journal of International Law 1; idem, ‘Constitutionalism and International Adjudication: How to Constitutionalize the UN Dispute Settlement System?’, (1999) 31 New York University Journal of International Law and Politics 753.
83. Although there are important parallels between Slaughter's liberal internationalism and the distinctive US internationalism of democrats from PresidentWilson onwards: Burley, ‘How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society’ note 46, at 394.
84. Although there are important parallels between Slaughter's liberal internationalism and the distinctive US internationalism of democrats from PresidentWilson onwards., at 404-5.
85. Burke-White, for example, has argued that an increased dependence on domestic courts is emerging in the context of international criminal law: Burke-White, Although there are important parallels between Slaughter's liberal internationalism and the distinctive US internationalism of democrats from PresidentWilson onwards note 11, at 3.
86. Universal Declaration ofHuman Rights, Art. 8; International Covenant on Civil and Political Rights (ICCPR), Art. 2(3).
87. These include theHuman Rights Committee (established by the ICCPR and the Optional Protocol (Optional Protocol to the ICCPR, UN GA Res. 2200 A (XXI), GAOR, 21st Session, Supp. No. 16 (A/6316)), the Committee on the Elimination of Racial Discrimination (established by the International Convention for Elimination of All Forms of Racial Discrimination, UN GA Res. 2106A (XX), GAOR, 12th Session, Supp. No. 14 (A/6014) 47, UN Doc. A/CONF 32/4); Committee against Torture (established by the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1984) 23 ILM 1027); the Inter-American Court ofHuman Rights (established by the 1969 American Convention onHuman Rights, (1970) 9 ILM673); the African Commission onHuman and Peoples’ Rights (established by the 1981 African Charter onHuman and Peoples’ Rights, (1982) 21 ILM 58).
88. Note, for instance, that the jurisdiction of the ICC is only ‘complementary’ to national criminal jurisdictions in the sense that a case can be brought before the ICC only if a state with jurisdiction is unwilling or unable genuinely to investigate or prosecute the case: see the 1998RomeStatute of the International Criminal Court, (1998, 37 ILM 999), Preamble, para. 10; Art. 17.
89. See in particular Slaughter, ‘The Liberal Agenda for Peace’, Note, for instance, that the jurisdiction of the ICC is only ‘complementary’ to national criminal jurisdictions in the sense that a case can be brought before the ICC only if a state with jurisdiction is unwilling or unable genuinely to investigate or prosecute the case note 11 (highlighting the weaknesses of the dichotomized realist/legalist conceptualization of the United Nations and offering an agenda for its reform based on liberal international relations theory).
90. G. Simpson, ‘Two Liberalisms’, (2001) 12 EJIL 537, at 553.
91. Admission of a State to the United Nations, Advisory Opinion, [1948] ICJ Rep.
92. Simpson, Admission of a State to the United Nations note 100, at 566. Simpson also suggests (at 566-7) that while Slaughter appears inrecent years to be retreating from an anti-pluralist position, that retreat is incompatible with her use of the distinction in the behaviour of liberal and non-liberal states to generate prescriptions for institutional reform that take these distinctions seriously.
93. Tesó n, A Philosophy, Simpson note 30, at 21, 25.
94. Tesó n., at 17.
95. Tesó n., at 19.
96. A. Buchanan, Justice, Legitimacy and Self-Determination:Moral Foundations for International Law (2004).
97. Justice, Legitimacy and Self-Determination:Moral Foundations for International Law., at 18.
98. Tesó n, Justice, Legitimacy and Self-Determination:Moral Foundations for International Law note 30; M. Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990) 84 AJIL 866; see also Simpson, Justice, Legitimacy and Self-Determination:Moral Foundations for International Law note 100, at 558, 563.
99. J. Rawls, The Law of Peoples (1999).
100. T. Franck, Fairness in International Law and Institutions (1998); see also Simpson, The Law of Peoples note 100, at 561.
101. Reus-Smit, Fairness in International Law and Institutions note 34.
102. Reus-Smit does point out that this neutral stance in Slaughter's work is inconsistent with the parts of her work where she advocates a normative agenda, but suggests that her normativity is without foundation rather than (as we suggest) her claim for neutrality. Fairness in International Law and Institutions., at 587.
103. Buchanan, Reus-Smit does point out that this neutral stance in Slaughter's work is inconsistent with the parts of her work where she advocates a normative agenda, but suggests that her normativity is without foundation rather than (as we suggest) her claim for neutrality note 106, at 2.
104. See discussion in Alvarez, Reus-Smit does point out that this neutral stance in Slaughter's work is inconsistent with the parts of her work where she advocates a normative agenda, but suggests that her normativity is without foundation rather than (as we suggest) her claim for neutrality note 106 note 55, at 192 et seq.
105. See Marks, discussion in Alvarez note 76, at 46.
106. Franck, discussion in Alvarez note 76 note 110, at 138. Franck's analysis borrows from Schumpeter's work in the 1940s-seeMarks, discussion in Alvarez note 76 note 76, at 50.
107. Marks, Franck note 76, at 57.
108. A similar point is made with respect to the possibility of internationalizing a norm of domestic governance in M. Koskenniemi, ‘“Intolerant Democracies”: A Reaction’, (1996) 37 Harvard International Law Journal 231.