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Following her guest lecture on 'The Future of International Law in an Age of Nationalist Populism,' Karen J Alter speaks to us about redundancy, regime complexity and universality in international law. She also explains how she uses heuristics and shares with us analytical tricks that help her to develop her thinking.

You refer to the many layers of redundancy in international law. You are also researching international regime complexity. Is there, for you, a relation between your research on international law and your work on regime complexity?

The idea of redundancy is not, for me, similar to the idea of regime complexity, although perhaps I should think harder about this. Redundancy in international law is a necessary and intentional feature of the system. Ratification of international treaties may be sufficient to create an international legal obligation, but in most national systems the only way for international law to become domestically applicable is if international legal commitments are translated into domestic statutes. Also, the legal way to create regional institutional competences is to generate regional treaties and laws. Finally, international law often generates global scripts that lead countries to create more law: adding legal and constitutional provisos, and generating actions and practices that then help build customary international law. Together these actions create a redundant set of similar and complementary legal obligations.

My presentation observed that redundancy has a number of virtues (#1). I explained that redundancy makes international law part of domestic legal systems, giving domestic actors their own reasons to follow international law.  Also, redundancy makes it very difficult to unwind international legal commitments, because exiting an agreement may not eradicate the extensive web of legal obligations that were created during ratification and implementation of international agreements. Finally, redundancy means that even if one country eliminates domestic legal obligations to follow international rules, a government will be constrained by their partner’s need to follow international law. I used the example of torture to demonstrate this idea, explaining why even when Commander-and-Chief President Trump suggests reinstituting torture as a feature of US foreign and military policy, the US military and policy-makers invoke legal impracticalities as a key reason for their opposition.

There are perhaps some similarities between the origins of redundancy and regime complexity. Both can be naturally occurring outgrowths of the combination of bureaucratic logic and time; when new problems arise, solutions get added to existing institutional structures. Over time, accretion–adding without also rationalizing–creates both redundancy and regime complexity. 

Yet there are other institutional and political logics that propel and sustain international regime complexity, which is why I don’t want merge the two ideas (#2). In addition, I see no harm in redundant international law. I can’t say the same for international regime complexity. Governing through international regime complexes may be unavoidable and better than the alternative of no international governance effort. Yet the largest problem international regime complexity generates is a lack of responsibility and accountability. Redundancy in this context can remove or limit direct responsibility and facilitate blame shifting.

What this discussion ignores is a concern about legal fragmentation. On the one hand, I know that one of the concerns about legal fragmentation is this idea that no central institution is responsible or accountable.  On the other hand, because I believe in democracy, and because I think that the concern about legal consistency is often over-stated, I don’t think it is either desirable nor possible to create a coherent set of international legal institutions and rules that supplants the incoherence introduced by local and state governance. One might say that redundancy in the context of regime complexes actually protects democratic choice by allowing states to create additional international side-agreements that are more to their liking.

In my presentation I used the collage image of a bird to describe the redundancy in international law, where the beauty of the image is enhanced by the layering of colors and textures. Regime complexes tend to be more like a puzzle where pieces do not actually fit together and where key connecting pieces are missing.

In the context of human rights law and criminal law you state that “ ‘Universal’ is not the language I would use.” You also refer to the necessity to adapt international law to local contexts. Can you elaborate more on these statements? And can you give examples of where such adaptation has happened, should happen or failed to happen?

This question gets to my previous observation about fragmentation and democracy. I live in a very large and heterogenous federal system of government where politics constantly jockeys between local, state, and national strategies. Local actors look to the state level, and state actors to the federal level to circumvent local opposition, and local actors then invoke state and local rights as they challenge federal rules. I have come to appreciate the messiness of this federal solution.  It works to let California and Texas do their own thing regarding guns, education, and the environment. Allowing difference (within limits) facilitates democratic choice, and it helps to keep the peace.

In terms of international law, I was mainly thinking of human rights and international criminal law.  I know that that this idea can be controversial, but it is also politically realistic. Most of us accept that there will be a sliding scale of socio-economic rights. While there may be no justification for a rich country like the US limiting access to healthcare as it does, the same cannot be said for a large developing country like Nigeria. The Nigerian central government barely has control let alone the ability to deliver services to most of the country. So with respect to socio-economic rights, we might accept that human rights generate goals and obligations that can vary based on state capacity and the level of development.

More controversial is the idea that certain basic rights might apply unevenly. As a practical matter, we might need to accept that African populations tend to be homophobic and some groups of people are deeply homophobic. Rather than international courts harming themselves by waging into this fraught political arena in the service of protecting human rights, perhaps the best we can do is to try to curb the political excesses of zealous actors in African state who propose witch hunts and cruelty. Meanwhile, as a normative matter we really should accept that different countries will have their own standards regarding the due-process rights of accused or convicted war criminals. We should not impose our due process values and expectations on other societies both because it is hypocritical (Europe and the US have no claim to superiority in how we deal with atrocities and the crimes of state actors) and because expectations and perceptions of justice when it comes to the rights of the accused can legitimately differ. 

This does not mean that we have no global expectations. I borrow from Stanley Hoffmann the idea that there should be a common floor and a moveable ceiling (#3). Genocide (e.g. the targeting homosexuals for elimination) and an absence of any legal proceeding must be precluded from the list of legal and legitimate choice. Yet this is a very low bar. As capabilities and social values progress, we might raise this common floor for humanity. Moreover, we should use national choice, education, and ethical arguments to keep raising local human rights ceilings. 

But I don’t want to use universal standards for human rights to recreate categories of “civilized” versus “uncivilized” nations or peoples.  I am quite comfortable saying that there is such a thing as crimes against humanity, and that what ISIS officers did in the lands ISIS controlled were and always will be barbaric, illegal, and illegitimate. Yet I can live with the idea of rough justice in wartime contexts. And while I will always be a feminist who promotes women’s rights, I also accept that feminism manifests itself differently around the world as women pick their battles and make their own choices of which rights to protect, and how gender rights are best promoted. 

What this intervention suggests is that human rights might be different around the world. I actually expanded the category of where I think international law enforcement should not go in an op-ed I wrote titled “Four Well Intentioned International Law Ideas Doomed to Fail.”

You are using visual metaphors throughout your presentation. Do you think in visuals, do these visuals reflect a way of thinking? And do images serve as a source of inspiration for you? Is there anything (else) you draw inspiration from for your academic work?

You asked what is an inspiration and a guide. I was a diver in high school, and to me Greg Louganis epitomized how great skill makes difficult challenges look easy.  Louganis could make a dive with a 3.3 degree of difficulty look both elegant and easy. I will never achieve Louganis’ skill, but I keep trying. Heuristics, and the mantra “less is more” are key ways I strive to this elusive goal.

Images, storytelling, hypothetical examples, and creating analytical categories are helpful tools of the academic trade. I use images for teaching. Meanwhile I spend a lot of energy thinking about heuristics, because they are extremely important in conveying complex ideas. I’m very proud of my book The New Terrain of International Law. The crafting involved is probably not visible, and that is how it should be.  Yet it took years for me to generate short-hands and heuristics that could cut through complexity. I had 24 courts, 18 case studies, four judicial “roles” (dispute settlement, administrative review, enforcement, constitutional review), and legal issues that spanned human rights, mass atrocities, trade, territorial disputes, investor rights and the seizing of vessels. To present a global perspective and a single argument I invented the categories of “old style” and “new style” international courts and the concept of a Court Treaty as a compendium of relevant legal texts. I appropriated the categories of self vs other-binding delegation, and delegation to trustees as distinct from delegation to agents, and I broke down the category of “compliance constituency” into compliance partners and compliance supporters. I also created visuals of regime complexes, figures and tables that helped people see the reach of international courts. The concepts were how I simplified, and the maps and many tables were how I wrapped my head around the complexity. They are how I transformed long lists and overwhelming detail into crisp(er) categories and comparisons. The images and tables certainly helped me. I hope they helped readers as well.

I often wish that authors would add real or hypothetical examples that make abstract ideas clearer, and add tables that present in one place and side-by-side the definitions, examples and mechanisms. Yet there is a limit.  Metaphors do not substitute for evidence, and scholars should not invent new words when we already have concepts that convey the notion. Indeed a pet peeve is that I really dislike when scholars expect readers to learn a new vocabulary to understand their point. My goal is understanding, not invention for the sake of coining a new term.

My ultimate dream would be to write like Greg Louganis dives. But I also feel compelled to be faithful to the challenges that decision-makers face. Ultimately, I care about politics, which are messy, contradictory, and at times even cruel. To suggest that decision-making and governance is like diving is to deny reality.

Although you did not ask, I will share 3 additional analytical tricks that have served me well.

a. I often use counterfactual analysis to help readers comprehend what might have occurred absent the intervention that I am analyzing.  My argument seldom depends on the counterfactual, but highlighting counterfactuals can provide new insight or make a causal claim more convincing.

b. I always point out what I am not saying.  I use this technique to show how my argument differs with other arguments that one commonly hears, and thus to sharpen my point or demonstrate the value added of my perspective.

c. I always extend my analysis when I reach the conclusion. The validity of the argument should be evident based on the body of the text. The conclusion can therefore be more speculative. I feel it is the author’s job to at least suggest to a reader how the point is important, and how it might travel to other issues and areas. A side benefit is that interesting introductions and conclusions will amplify the impact of an article, broadening one’s audience.

 

Footnotes

(#1) I took this idea from discussions about waste in the military. Some analysts suggest that although redundancy may not be efficient, redundancy can be a highly effective means to ensure that key goals are achieved.  See for example, Leo J. Blanken & Jason J. Lepore; 2012. Unpacking the various meanings of redundancy: from refining the concept to military planning, Defense & Security Analysis 28:4,326-342.

(#2) See Alter, Karen J., and Kal Raustiala. 2018. The Rise of International Regime Complexity. Annual Review of Law and Social Science 14, 18.1–18.21, especially 9-12.

(#3) Hoffmann, Stanley. 1981. Duties Beyond Borders. Syracuse: Syracuse University Press.

 

More information about Karen J. Alter's guest lecture on 'The Future of International Law in an Age of Nationalist Populism' delivered on 22 May 2019.