The Assault on International Adjudication and the Limits of Withdrawal

KFG Working Paper Series, No. 28, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?”

38 Pages Posted: 7 Mar 2019 Last revised: 15 Mar 2019

See all articles by Campbell A McLachlan

Campbell A McLachlan

Victoria University of Wellington - Faculty of Law; New Zealand Law Foundation

Date Written: February 2019

Abstract

International adjudication is currently under assault, encouraging a number of States to withdraw, or to consider withdrawing, from treaties providing for international dispute settlement. This Working Paper argues that the act of treaty withdrawal is not merely as the unilateral executive exercise of the individual sovereign prerogative of a State. International law places checks upon the exercise of withdrawal, recognising that it is an act that of its nature affects the interests of other States parties, which have a collective interest in constraining withdrawal. National courts have a complementary function in restraining unilateral withdrawal in order to support the domestic constitution. The arguments advanced against international adjudication in the name of popular democracy at the national level can serve as a cloak for the exercise of executive power unrestrained by law. The submission by States of their disputes to peaceful settlement through international adjudication is central, not incidental, to the successful operation of the international legal system.

Suggested Citation

McLachlan, Campbell A, The Assault on International Adjudication and the Limits of Withdrawal (February 2019). KFG Working Paper Series, No. 28, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?”. Available at SSRN: https://ssrn.com/abstract=3335394 or http://dx.doi.org/10.2139/ssrn.3335394

Campbell A McLachlan (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

New Zealand Law Foundation ( email )

New Zealand

Register to save articles to
your library

Register

Paper statistics

Downloads
27
Abstract Views
123
PlumX Metrics