The Backlash against International Courts

International courts seem to be living in hard times. The International Court of Justice is openly challenged by the Italian Constitutional Court, the European Court of Human Rights faces political initiatives to curtail its power in the UK and in Switzerland, the International Criminal Court is up against occasional rebellion in a number of African countries, the Inter-American Court of Human Rights has been confronted with challenges by courts and governments in Venezuela and the Dominican Republic, and several (especially Latin American) countries have initiated a backlash against international investment arbitration. This symposium has debated a number of these cases in some depth, yet they are only the tip of the iceberg.

Are these instances part of a trend, as the introductory post suggests? Perhaps, perhaps not. International courts have always faced challenges – not the least, of course, from countries that refused to submit to their jurisdiction in the first place – and they always had to cope with problems of non-compliance. The US refusal to participate in the ICJ’s Nicaragua proceedings, Libya’s rejection of international arbitration regarding the nationalization of oil companies in the 1970s, or the resistance of the Belgian Cour de cassation against the ECtHR’s Marckx judgment on the status of children born out of wedlock in the 1980s, are only some examples that caught the attention at the time. The warning shots fired by the German Bundesverfassungsgericht at the European Court of Justice since its Solange judgment in the 1970s are another. We should thus not jump too quickly to conclusions about the novelty of today’s challenges. In fact, many accounts suggest that we’re witnessing an unprecedented strength and breadth of legalization and judicialization in international affairs. Karen Alter’s recent book chronicles this trend well ...

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