Introduction to The Judicialization of International Law - a Mixed Blessing? to appear, Oxford University Press 2017
7 Pages Posted: 17 May 2017 Last revised: 17 Aug 2017
Date Written: May 15, 2017
International courts and tribunals (ICs) are increasing in number and importance. They address an expanding variety of issues, ranging from the law of the sea to international criminal law. The ICs are typically of a compulsory character, be it de jure or de facto: states may in practice have little choice whether to accept their jurisdiction if they want to benefit from the relevant regime. They no longer only address disputes among states; several of them are open to non-state actors. And they have functions beyond dispute settlement: they develop or make law, make specialized regimes work through their interpretations, and contribute to compliance with international obligations. In short: international relations are increasingly judicialized. The present book maps and assesses this development - and reactions thereto, because the trends have met with mixed responses...
The volume is composed to give a representative picture of the achievements of ICs, as well as the challenges they face. While only a few of the current international courts and tribunals are covered, those included are among those that have received most critical scrutiny.
The book shows that several of the ICs are living up to the aspirations, and that the fear of institutional fragmentation has only to a limited degree materialized. However, there is a diversity of opinions by different stakeholders of what to be desired from the ICs.
Contributions are listed in the text.
The contributions in this book show that after a period of considerable expansion and increasing importance of ICs, several of them are faced with criticism about their legitimacy, and even backlashes. The criticism is diverse and may relate to the composition of the courts and tribunals, to their procedures, or to their legal interpretations and the acceptability of their outcome. Some of the ICs are more susceptible to critique than others. The investment arbitral tribunals are currently under especial strong attack. They are accused of being composed of a small circle of lawyers, lacking in transparency, and favouring investors.
The authors demonstrate that the ICs have an ability to adapt to changing circumstances.
The ICs enjoys considerable discretion in their interpretation and application of international obligations. Their independence is a cornerstone in their legitimacy. But it does not seem that the institutional frameworks of the different ICs sufficiently reflect the need to secure both the independence and the accountability of the courts and tribunals. More focus should be on the design and functioning of such accountability mechanisms while preserving the independence essential for their credibility.
States may of course become so frustrated with the ICs that they choose to leave. But this is the rare exception. Instead, we have seen that states choose to participate in proceedings in an informal way, rather than how it is envisaged by the relevant treaty. We have so far only a couple of instances where this has happened. But while showing reluctance towards the relevant ICs, these examples seems to confirm that the threshold for a complete withdrawal is high.
The courts and tribunals operate in an environment of public debate and academic works. There is a need for more information and engagement in the workings, successes and failures of the ICs – and of what we should reasonably expect from them. This requires further research on the ‘mixed blessing’ of international courts and tribunals.
Keywords: international courts, legitimacy, PluriCourts
Suggested Citation: Suggested Citation
Follesdal, Andreas and Ulfstein, Geir, International Courts and Tribunals: Rise and Reactions (May 15, 2017). Introduction to The Judicialization of International Law - a Mixed Blessing? to appear, Oxford University Press 2017. Available at SSRN: https://ssrn.com/abstract=2968609