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International Adjudication and Its Discontents: a Pluralist Approach to International Tribunal Backlash

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International Adjudication and Its Discontents: a Pluralist Approach to International Tribunal Backlash Lovat, H. (2020) International adjudication and its discontents: a pluralist approach to international tribunal backlash. Israel Law Review, 53(3), pp. 301-333. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. http://eprints.gla.ac.uk/214412/ Deposited on: 20 April 2020 Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk INTERNATIONAL ADJUDICATION AND ITS DISCONTENTS: A PLURALIST APPROACH TO INTERNATIONAL TRIBUNAL BACKLASH Henry Lovat, Lord Kelvin Adam Smith Research Fellow, University of Glasgow [email protected] ABSTRACT International tribunal backlash remains poorly understood: hampered by conceptual challenges, systematic research into the causes of this phenomenon remains minimal. The present article makes two contributions to advancing this endeavour. First, building on existing literature, it sets out a working definition of international tribunal backlash, tailored to facilitate multi-method empirical research into the causes of backlash across institutions and sectors. Second, drawing on International Relations’ pluralist turn, the article provides an analytically eclectic theoretical scaffold for causal analysis of international tribunal backlash, enabling standardised cross-institutional and sectoral comparison without over-simplifying the complexity of backlash in different instances. The article accordingly provides the building blocks for improved understanding of the causes of - and potential scope to manage - international tribunal backlash across institutions, regions, and sectors.1 Keywords: International Adjudication; International Tribunals; Backlash; International Relations; Pluralism INTRODUCTION International courts have been described as the ‘lynchpin’ of the post-Cold War ‘rules-based’ international order.2 Elements of this order have come under sustained pressure, however, as government and public attitudes have shifted over time.3 In the context of international 1 I am grateful to Anne van Aaken, Pierre d’Argent, Franzizka Boehme, Geoff Dancy, Cian O’Driscoll, Kevin Jon Heller, Courtney Hillebrecht, Frederic Megret, Kurt Mills, Ian Paterson, Ty Solomon, Scott Strauss, Christian Tams, Shaina Western, and anonymous reviewers for helpful comments and discussions, as well as panellists and participants at the 2018 ESIL Research Forum and ISA Conference. 2 Yuval Shany, ‘Assessing the Effectiveness of International Courts: A Goal-Based Approach’, American Journal of International Law 106, no. 2 (2012): 226. Kent et al observe similarly that: ‘the existence of [international courts] is a condition sine qua non for the proper functioning of a rule-based international order’ (Avidan Kent, Nikos Skoutaris, and Jamie Trinidad, ‘What Does the Future Hold for International Courts?’, in The Future of International Courts: Regional, Institutional and Procedural Challenges, ed. Avidan Kent, Nikos Skoutaris, and Jamie Trinidad (London, UK: Routledge, 2018), 7.) 3 Alter refers to ‘the end of the liberal consensus’. (Karen J. Alter, ‘Critical Junctures and the Future of International Courts in a Post-Liberal World Order’, in The Future of International Courts: Regional, Institutional and Procedural Challenges, ed. Avidan Kent, Nikos Skoutaris, and Jamie Trinidad (London, UK: Routledge, 2018), 9.) 1 tribunals, this has manifested most conspicuously in an apparent increase in hostility from governments and others towards international courts, a tendency that in its more extreme forms has been labelled backlash.4 A range of instances of so-called tribunal backlash have captured policy and academic concern in recent years. In a particularly infamous case, for example, Zimbabwe-led efforts led to the shuttering of the South African Development Community (SADC) Tribunal in 2011.5 Backlash against regional courts has also been cited in Latin America and the Caribbean, as well as in further African courts.6 Indeed, the European Court of Human Rights (ECtHR) - the flagship regional human rights court - has not proven immune to sustained government complaints about its decision-making, including from both the UK and Russia. Similarly, amongst global bodies, the International Criminal Court (ICC) continues to labour under pressure from disgruntled developed and developing world governments, including an oft-cited African backlash. Continued US refusal to sanction appointments to the World Trade Organization Appellate Body (WTO AB) likewise illustrates the susceptibility of international trade governance to backlash.7 Not all international courts have obviously experienced backlash, nor have those that may have done so encountered this to the same degree. Given the centrality of these institutions to their respective regimes, however, and to the rule-based international order more broadly, the apparently growing prevalence of backlash presents a puzzling, and - for those who see value in preserving the post-Cold War international order - concerning development. There is a growing literature on tribunal backlash. To date, however, there is little consensus as to the key characteristics of this phenomenon, and still less clarity as to its principal drivers across institutions and sectors. The present article charts a path forward in respect of both 4 The terms ‘tribunal’ and ‘court’ are used interchangeably in this article to refer to what may be considered more broadly as ‘international adjudicative bodies’. (See Cesare P. R. Romano, Karen J. Alter, and Yuval Shany, ‘Mapping International Adjudicative Bodies, the Issues, and Players’, ed. Cesare P. R. Romano, Karen J. Alter, and Yuval Shany (Oxford, UK: Oxford University Press, 2014), 6.) 5 Karen J. Alter, James T. Gathii, and Laurence R. Helfer, ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’, European Journal of International Law 27, no. 2 (2016): 293– 328; Tendayi Achiume, ‘The SADC Tribunal: Socio-Political Dissonance and the Authority of International Courts’, in International Court Authority, ed. Karen J. Alter, Laurence R. Helfer, and Mikael Rask Madsen (Oxford, UK: Oxford University Press, 2018), 124–48. 6 Alter, Gathii, and Helfer, ‘Backlash against International Courts in West, East and Southern Africa’; Jorge Contesse, ‘Judicial Backlash in Inter-American Human Rights Law?’, I·CONnect (blog), 2 March 2017, http://www.iconnectblog.com/2017/03/judicial-backlash-interamerican/; Laurence R. Helfer, ‘Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash against Human Rights Regimes’, Columbia Law Review 102, no. 7 (2002): 1832–1911. 7 See detailed discussion in Section 1.1. below in respect of the experiences of these bodies. 2 endeavours, providing a working definition of backlash, designed to enable cross-sectoral identification and causal analysis of this phenomenon, and presenting a pluralist theoretical framework for its systematic study. This framework draws on the growing scholarly literature on tribunal backlash and the pluralist turn in International Relations (IR) to identify factors that, together, may be capable of largely explaining when and in what circumstances backlash is more or less likely to occur. The article comprises four substantive sections. The first section surveys instances cited of tribunal backlash and academic approaches to these, and considers the challenges involved in working with this concept. The next section grapples with the issue of how best to define backlash for the purposes of comparative, causal analysis. The third section proposes a theoretical framework for the study of this phenomenon, identifying and situating within a pluralist scaffold factors that existing studies and broader IR and associated interdisciplinary International Law (IL)/IR literature suggest may have a bearing on whether backlash is likely to occur in any given set of circumstances. The fourth section illustrates how this definition and framework may be applied to help make sense of backlash as a cross-sectoral, cross- regional phenomenon, and considers the advantages and challenges of this approach. A concluding discussion follows. 1. INTERNATIONAL TRIBUNALS AND THEIR DISCONTENTS It is not unusual for international tribunals to experience mixed fortunes as governments fail or seek to avoid or delay the implementation of judicial decisions, and in some cases seek to undermine courts’ operations.8 US withdrawal from the compulsory jurisdiction of the International Court of Justice (ICJ) in 1985 following the Nicaragua decision stands out historically in this regard, alongside Jean Kirkpatrick’s oft-cited description of the principal judicial organ of the United Nations as a ‘semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't.’9 There is similarly nothing new in scholars warning of the risk of a ‘return to the law of the jungle’ in international affairs.10 8 The 1949 ICJ decision in the Corfu Channel case, for example, was implemented only in 1996. See Constanze Schulte, Compliance with Decisions of the International Court of Justice, International Courts and Tribunals Series (Oxford ; New York, NY: Oxford University Press, 2004), 91–99; Aloysius P. Llamzon, ‘Jurisdiction and Compliance in Recent Decisions of the International Court of Justice’, European Journal of International Law 18, no. 5 (1 November 2007): 825, at note 56. 9 Howard Meyer, ‘When the Pope
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