Theorizing the Judicialization of International Relations
iCourts Working Paper Series
40 Pages Posted: 20 Nov 2018
Date Written: November 16, 2018
This article introduces a Thematic Section, forthcoming in International Studies Quarterly, on Judicializing International Relations. The article examines the multiple ways that judicializing international relations shifts power away from national executives and legislatures towards litigants, judges, arbitrators, and other non-state decision-makers. We identify two preconditions for judicialization to occur—delegation to a court or other adjudicatory body charged with applying designated legal rules, and 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 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 non-state actors influence politically consequential decisions.
Keywords: International courts, international relations, adjudication, delegation, judicialization, international arbitration, litigants, judges, backlash
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