The proliferation of international law and institutions over the past two decades has produced both excitement and anxiety. Cooperation and coordination – formal and informal – have allowed states and other international actors to get at global and regional problems and facilitate international exchange much more than in the past. The heightened activities of international organizations and national governments have pertained both to traditional areas, as well as those, such as environmental law, which had hitherto been almost exclusively within the domain of domestic politics and law. Such developments have worried those who believe that decisions taken at the international level are insufficiently reflective of and constrained by democratic politics and basic principles of due process, and unfairly give preferences to powerful states over less powerful ones.
The application of the tools of international relations, particularly those associated with rational choice analysis, to problems of international law has generated many important insights in the last two decades. In a recent issue of this Journal, Eyal Benvenisti and George Downs, two scholars who individually and jointly have contributed much to this research programme, provide a fascinating interpretation of a recent trend in democracies toward judicial constraint of executives in foreign affairs matters. Placing this development in the broader context of inter-judicial cooperation and globalization, they argue that courts are increasingly coordinating across borders to constrain their national executives. This requires resolution of a transnational collective action problem among judges. The piece is creative, well-argued, and might even be correct. But, as I will argue, it might not be. The fact that courts cooperate and coordinate is observationally equivalent to other plausible theories of what courts are doing. These theories are simpler and also consistent with the basic story Benvenisti and Downs want to tell.
We thank the three commentators for their thoughtful and most helpful comments on our essay. We regret that we cannot do justice to all of them in this brief rejoinder. We would like to note at the outset that we agree with the collective assessment that we have only begun to understand the character and dynamics of inter-judicial cooperation, the nature of the motivations that underlie it, and its potential effects. In a forthcoming paper we examine the nature of the potential externalities of national court coordination with respect to fostering greater democratic accountability at both the domestic and the international level and we argue that, at least relative to the current status quo, these effects are likely to be positive at both levels. However, much remains to be done.
Professor Ken Anderson's essay is 'an unabashed survey, in a short space' (at 332), which 'surfs rather than dives' (at 358), in order to allow the reader to appreciate 'just how breathtakingly broad the horizon of our rising system of international criminal law turns out to be' (at 358). The concomitant risk of this approach is to mischaracterize the analysed phenomena by neglecting issues which fundamentally affect them. Highlighting counter-arguments and considering contradictory evidence, however briefly, would have been one way to canvas, albeit not capture, the complexity of the issues and avoid excluding critical aspects of international legal developments.
This article comments on Professor Tams's 'The Use of Force against Terrorists'. Tams's study deals with the application of the jus ad bellum to the problem of terrorism and, in particular, the issue of extraterritorial or cross-border use of force against terrorists. Thus, it refers to inter-state relations. The author examined the developments which have occurred in the last 20 years and concluded that there is today an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. If the international community is capable of maintaining a strong stance against terrorism, he wrote, then there is no reason to expect that the jus ad bellum should be immune from (further) change.
In his recent article 'The Use of Force Against Terrorists', Professor Tams provides a thoughtful overview of developments in the jus ad bellum over the past 20 years. His analysis focuses on the right to use force in self-defence, particularly as regards the permissibility of extra-territorial military responses to terrorist attacks by non-state actors. The thrust of Professor Tams' argument is that the relevant state practice suggests an evolution in the law of self-defence – moving away from a restrictive analysis of Article 51 to a broader interpretation which more easily accommodates anti-terrorist force. In this comment, I will focus on Professor Tams' approach to questions of 'attribution' and the inter-state reading of Article 51, in particular his 'more moderate (but still important) re-reading' of the standard of attribution applicable in the terrorism context.
I am grateful to Dr Trapp and Mr Sperotto for their comments on my article 'The Use of Force Against Terrorists' and to the Journal's editors for permitting me to add a rejoinder. While addressed to very particular and very different aspects of the article, I believe the two comments help put the argument made in it into perspective.
In 'The Hidden World of WTO Governance', Andrew Lang and Joanne Scott rightly identify WTO committees as an understudied site of WTO governance. Their analysis deploys frameworks based largely on the sociology of global tech¬nocracy, lenses which bring into focus WTO behaviour not usually given much consideration, yet their description and analysis are incomplete, for they miss the central role of states as principals directing the activities of their representatives on the committees, as well as the power politics within and around WTO committees. Only by also considering the state, state interests, the relative power of states engaged in committee deliberation, and WTO committee participants as government representatives can we more fully understand and assess WTO committees as sites of governance.
Professor Steinberg responds to our article by re-asserting a familiar analytical paradigm – a comfortable Newtonian world dominated by large stable pieces known as states which operate on the basis of fixed interests categorically defined in advance. But that traditional paradigm no longer provides a satisfactory account of the operation of today's trade regime, particularly in the context of regulatory supervision. Its tenacious hold over contemporary scholarship needs to be dislodged. Our article attempts to do precisely that, by inviting more sustained analysis of the actual and potential operation of alternative modes of governance within two WTO committees.
Francesco Francioni's article opens with a critical and timely reminder for those who study and practise in international investment law. He reminds us that '[d]enial of justice lies at the heart of the development of international law on the treatment of aliens and of foreign investment'. Francioni's article is thematically structured across this concern of denial of justice and its reflection in different areas of international law. In particular, he examines its history, later crystallization as a doctrinal category of redress for foreign investors, and whether the system of investment treaty protection itself requires reform to offer remedies for individuals adversely impacted on by foreign investment in a host state. I plan to respond briefly to each of these important points, but will also address a broader issue necessarily implicated in Francioni's analysis. This is the charged question of how conflict between the systems of investment law and human rights protections might arise and be managed.