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Article: International Law and Courts: The Promise of Historical Institutional Analysis
Karen J. Alter
Northwestern University - Department of Political Science; University of Copenhagen, Faculty of Law - iCourts Center of Excellence October 10, 2013
Oxford Handbook of Historical Institutionalism, Orfeo Fioretos, Tulia G. Falleti, and Adam Sheingate, eds., Oxford University Press (Forthcoming) iCourts Working Paper Series, No. 3, 2013
This paper examines what the tools of historical institutional analysis can bring to the study of international courts. Rather than seeing the creation of an international court as a new institutional moment, I argue that the proliferation and fundamental reorientation of international courts over time is best understood as institutional evolution across three critical junctures: the disappointing Hague Peace conference era, the trauma of WWII, and the end of the Cold War. New-style international courts reflect lessons learned that combine with a desire to make state legal commitments more meaningful and international legal instruments more effective. To understand the varied influence of established ICs, one should look at international law and international courts as opportunity structures that societal actors activate. The paper then considers whether courts, as legal institutions, are a distinct type of institution and whether international courts are distinct types of courts. I argue that international courts draw on the authority of the rule of law yet per force operate in a polycentric context, with the competing authority and pull of domestic law and democratic choice serving as counterweights that fuel and limit appeals to international courts and that constrain international court decision-making and influence. Within this context, historical institutional approaches are likely to significantly contribute: 1) in helping us understand the differing decisions of political actors to invoke litigation threats and litigation; 2) in helping us understand the choices of international judges and the varying impact of international legal rulings; 3) in helping us understand how national legal doctrine vis-à-vis international law evolves over time.