The High Water Mark of International Judicialization?
iCourts Working Paper Series, No. 250
Forthcoming (2022) in Charles Brower, et al. By Peaceful Means: A Tribute to David D. Caron, Oxford University Press
29 Pages Posted: 3 Jun 2021
Date Written: June 1, 2021
The proliferation of international courts and tribunals was a post-Cold War phenomenon. Its timing coincided with rise of the Neo-liberal Washington Consensus, and with the idea that promoting human rights and democracy decreases violence and interstate-war. Should we expect declining popular support for globalization and democracy, and the rise of nationalists leaders and powerful countries antagonistic to human rights and the rule of law to signal the end of the international adjudication era? This contribution will consider the forces that propelled the proliferation of international courts and international adjudication, and international judicialization more generally alongside the factors that contribute to dejudicializing international politics to explore what the current moment suggests for the future of international adjudication. I argue that formal dejudicialization–the elimination of international adjudication–is less likely than de facto dejudicialization. Exploring further de facto dejudicialization, I consider two likely possibilities. 1) International adjudication can return to Sleeping Beauty mode where adjudicatory bodies exist but they are either little used and/or their rulings become less legally and politically relevant. 2) We can witness decay where adjudicatory bodies either become subservient or they generate contestation that undermines their legitimacy and authority. We cannot know if these two options present short or longer term equilibriums, but overall I predict that judicialized international politics will persist.
Keywords: International courts, Human Rights, nationalism, globalization, dejudicalization
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