Theorizing the Judicialization of International Relations

19 Pages Posted: 20 Nov 2018 Last revised: 5 Sep 2019

See all articles by Karen J. Alter

Karen J. Alter

Northwestern University - Department of Political Science; University of Copenhagen, Faculty of Law - iCourts Center of Excellence

Emilie Marie Hafner-Burton

UCSD School of Global Policy and Strategy

Laurence R. Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: September 9, 2019

Abstract

This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur—(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring—or threaten to bring—a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for authoritatively determining past violations of the law, identifying remedies for those violations, and preventing future violations. Because judicializing international relations occurs in multiple phases, in multiple locations, and involves multiple actors as decision-makers, governments often do not control the timing, nature, or extent to which political and policy decisions are adjudicated. Delegation—and the associated choice of institutional design features—is thus only the first step in a chain of processes that determine how a diverse array of nonstate actors influence politically consequential decisions.

Keywords: international courts, international relations, adjudication, delegation, judicialization, international arbitration, litigants, judges, backlash

Suggested Citation

Alter, Karen J. and Hafner-Burton, Emilie Marie and Helfer, Laurence R., Theorizing the Judicialization of International Relations (September 9, 2019). iCourts Working Paper Series; International Studies Quarterly, Volume 63, Issue 3, September 2019, Pages 449–463. Available at SSRN: https://ssrn.com/abstract=3284481 or http://dx.doi.org/10.2139/ssrn.3284481

Karen J. Alter

Northwestern University - Department of Political Science ( email )

601 University Place
Evanston, IL 60208
United States

University of Copenhagen, Faculty of Law - iCourts Center of Excellence ( email )

Karen Blixens Plads 16
Copenhagen, DK-2300
Denmark

Emilie Marie Hafner-Burton

UCSD School of Global Policy and Strategy ( email )

9500 Gilman Drive
La Jolla, CA 92093-0519
United States

HOME PAGE: http://gps.ucsd.edu/ehafner/

Laurence R. Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

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