coordination through judicial dialogue

International courts regularly cite each other, in part as a means of building legitimacy. Such international, cross-court use of precedent (or “judicial dialogue”) among the regional human rights courts and the Human Rights Committee has an additional purpose and effect: the construction of a rights-based global constitutionalism. Judicial dialogue among the human rights courts is purposeful in that the courts see themselves as embedded in, and contributing to, a global human rights legal system. Cross-citation among the human rights courts advances the construction of rights-based global constitutionalism in that it provides a basic degree of coordination among the regional courts. The jurisprudence of the U.N. Human Rights Committee (HRC), as an authoritative interpreter of core international human rights norms, plays the role of a central focal point for the decentralized coordination of jurisprudence. The network of regional courts and the HRC is building an emergent institutional structure for global rights-based constitutionalism

Resurgent authoritarianism and the international rule of law

Modern rule of law and post-war constitutionalism are both anchored in rights-based limitations on state authority. Rule-of-law norms and principles, at both domestic and international levels, are designed to protect the freedom and dignity of the person. Given this “thick” conception of the rule of law, authoritarian practices that remove constraints on domestic political leaders and weaken mechanisms for holding them accountable necessarily erode both domestic and international rule of law. Drawing on political science research on authoritarian politics, this study identifies three core elements of authoritarian political strategies: subordination of the judiciary, suppression of independent news media and freedom of expression, and restrictions on the ability of civil society groups to organize and participate in public life. According to available data, each of these three practices has become increasingly common in recent years. This study offers a composite measure of the core authoritarian practices and uses it to identify the countries that have shown the most marked increases in authoritarianism. The spread and deepening of these authoritarian practices in diverse regimes around the world diminishes international rule of law. The conclusion argues that resurgent authoritarianism degrades international rule of law even if this is defined as the specifically post-Cold War international legal order

A New Age of International Courts

Reviewing Karen J. Alter, The New Terrain of International law: Courts, Politics, Rights (Princeton University Press 2014)

The Rule of Law under Challenge: The Enmeshment of National and International Trends

In a period of rising threats to constitutional government within countries and among them, it is a crucial time to study the rule of law in transnational context. This framework paper defines core concepts, analyzes the relation of national and international law and institutions from a rule-of-law perspective, and assesses the extent to which rule-of-law practices are shifting at the domestic and international levels in parallel. Part I explains our conceptualization of the rule of law, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in terms of goals and practices, which, in turn, calls for an assessment of institutional mechanisms to advance these goals, given varying social conditions and contexts. Part II sets forth the ways in which international law and institutions are important for rule-of-law ends, as well as their pathologies, since power also is exercised beyond the state in an interconnected world. Part III examines empirical indicators of the decline of the rule of law at the national and international levels. It notes factors that could explain such decline, and why such factors appear to be transnationally linked. Part IV discusses what might be done given these shifts in rule-of-law protections. We then conclude, noting the implications of viewing the rule of law in transnational context for conceptual theory, empirical study, and policy response

The Transnational Legal Ordering of the Death Penalty

A transnational legal order (TLO) authoritatively shapes “the understanding and practice of law” in a specific area of social activity, involving both state and civil society actors, and linking national, regional, and international levels. We argue that a TLO has emerged and settled since 1945 around capital punishment. Our analysis of the death penalty TLO treats “bottom-up” and “top-down” effects as interconnected, addresses the creation of legal order at both national and international levels, and emphasizes the recursivity linking developments at both levels. We trace the development of death penalty abolition from its origins in the immediate aftermath of World War II. Because the practical effects of abolition—in shaping legal and penal practice—necessarily occur at the national level, the analysis focuses on the international, transnational, and domestic factors that lead states to end capital punishment. After describing the emergence of a TLO abolishing the death penalty, we offer a new way of measuring the global and country-specific activities of transnational advocacy groups (Human Rights Watch and Amnesty International). We incorporate that measure in an analysis of data from about 150 countries. The central hypothesis is that making the TLO on capital punishment effective through abolition in national law requires modes of political action that overcome majoritarian public support for retention. We suggest two domestic institutional features that make abolition more likely despite retentionist popular opinion: proportional representation in the legislature and independent courts. We also suggest that transnational non-governmental organizations (NGO) and some regional organizations can support the move to abolish. The data analysis is largely consistent with these propositions and brief case studies illustrate the principal mechanisms

Law, Politics, and International Governance

The politics of international law are inextricably linked to the issue of governance. In this chapter we approach the central themes of the book by considering this vexed issue, developing four key arguments. First, we define and conceptualise institutions and governance so that any alleged distinction between law and politics becomes untenable or irrelevant. Our claim here directly addresses two of the three questions put forward by Christian Reus-Smit (in chapters 1 and 2) as animating this book: How should we think of international law and international politics? What is the relationship between the two? Our empirical discussion responds to the third question: How does rethinking these categories enable us better to understand contemporary international relations? We agree with Reus-Smit that international law and politics infuse and shape each other, although we understand this relationship somewhat differently. Second, we are concerned with the sources and uses of power in international society. Elaborating on the distinction drawn by Reus-Smit between realist and constructivist approaches, we distinguish normative-ideational power (influence through argumentation and suasion, dear to constructivists) from material-physical power (influence through the manipulation of threats and coercion, emphasised by realists). Third, we develop a relatively abstract model of how institutions emerge and evolve in two kinds of social settings: the dyadic and the triadic. Finally, we illustrate our theoretical ideas with reference to the development of triadic forms of governance in the context of the General Agreement on Tariffs and Trade (GATT), and dyadic in the case of forcible humanitarian intervention