From the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent

Abstract

Since the end of the Cold War, there has been a trend towards the judicialization of international relations, signaled by an increasing number of international judicial bodies. Yet, the most notable feature of this well-known phenomenon has been overlooked. While traditionally international litigation has taken place consensually, in the past two decades compulsion has become the prevailing paradigm. The shift is visible both in treaty regimes and in international jurisprudence. Consent has become so removed in time and substance from the exercise of jurisdiction that it can be asked whether it serves any more as a significant function in the international order. What does it mean exactly to consent to the jurisdiction of an international adjudicative body under contemporary international law?

The Article suggests that the fact that this shift has not been homogeneous across legal regimes and has not involved all States is the root problem of many predicaments affecting contemporary international law and relations. The most troubling of these is that increasingly the same disputes are litigated serially or in parallel in different international fora, thus undermining the ultimate rationale of international judicial proceedings: closure and settlement.

While issues of litispendence and forum shopping are attracting increasing attention, the shift itself is an underrated and unnoticed phenomenon. This Article proposes a different theoretical and empirical framework for understanding contemporary international adjudication and the phenomenon of the judicialization of world politics. By presenting new hypotheses and normative findings, it lays the groundwork for future research and discussion.