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"INTERNATIONAL COURTS"
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Backlash against international courts: explaining the forms and patterns of resistance to international courts
The paper investigates and theorises different forms and patterns of resistance to international courts (ICs) and develops an analytical framework for explaining their variability. In order to make intelligible the resistance that many ICs are currently facing, the paper first unpacks the concept of resistance. It then introduces a key distinction between mere pushback from individual Member States or other actors, seeking to influence the future direction of a court's case-law, and actual backlash – a critique triggering significant institutional reform or even the dismantling of tribunals. On the basis on the proposed theoretical framework, the paper provides a roadmap for empirical studies of resistance to ICs, considering the key contextual factors necessary to take into account in such studies.
Journal Article
The Politics of Genocide
Beginning with the negotiations that concluded with the unanimous
adoption of the United Nations Convention on the Prevention and
Punishment of the Crime of Genocide on December 9, 1948, and
extending to the present day, the United States, Soviet
Union/Russia, China, United Kingdom, and France have put forth
great effort to ensure that they will not be implicated in the
crime of genocide. If this were to fail, they have also ensured
that holding any of them accountable for genocide will be
practically impossible. By situating genocide prevention in a
system of territorial jurisdiction; by excluding protection for
political groups and acts constituting cultural genocide from the
Genocide Convention; by controlling when genocide is meaningfully
named at the Security Council; and by pointing the responsibility
to protect in directions away from any of the P-5, they have
achieved what can only be described as practical impunity for
genocide. The Politics of Genocide is the first book to
explicitly demonstrate how the permanent member nations have
exploited the Genocide Convention to isolate themselves from the
reach of the law, marking them as \"outlaw states.\"
eBook
International court authority
International Court Authority challenges fundamental preconceptions about when, why, and how international courts become important and authoritative actors in national, regional and international politics. Examining global and regional bodies, this volume investigates how political and social contexts shape the authority of international courts.
Book
Credible Commitments and the International Criminal Court
The creation of an International Criminal Court (ICC) to prosecute war crimes poses a real puzzle. Why was it created, and more importantly, why do states agree to join this institution? The ICC represents a serious intrusion into a traditional arena of state sovereignty: the right to administer justice to one's one nationals. Yet more than one hundred states have joined. Social scientists are hardly of one mind about this institution, arguing that it is (alternately) dangerous or irrelevant to achieving its main purposes: justice, peace, and stability. By contrast, we theorize that the ICC is a mechanism to assist states in self-binding, and draw on credible commitments theory to understand who commits to the ICC, and the early consequences of such commitments. This approach explains a counterintuitive finding: the states that are both the least and the most vulnerable to the possibility of an ICC case affecting their citizens have committed most readily to the ICC, while potentially vulnerable states with credible alternative means to hold leaders accountable do not. Similarly, ratification of the ICC is associated with tentative steps toward violence reduction and peace in those countries precisely least likely to be able to commit credibly to foreswear atrocities. These findings support the potential usefulness of the ICC as a mechanism for some governments to commit to ratchet down violence and get on the road to peaceful negotiations.
Journal Article
International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe
Do international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? We develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. We examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual, and transgender (LGBT) issues by creating a new data set that matches these rulings with laws in all Council of Europe (CoE) member states. We also collect data on LGBT policies unaffected by ECtHR judgments to control for the confounding effect of evolving trends in national policies. We find that ECtHR judgments against one country substantially increase the probability of national-level policy change across Europe. The marginal effects of the judgments are especially high where public acceptance of sexual minorities is low, but where national courts can rely on ECtHR precedents to invalidate domestic laws or where the government in power is not ideologically opposed to LGBT equality. We conclude by exploring the implications of our findings for other international courts.
Journal Article
Legitimacy of unseen actors in international adjudication
\"'Unseen actors' are vital to the functioning of international courts and tribunals, exercising varying levels of influence on the adjudicatory process and its outcome. The last few decades have witnessed an expansion in the number of international judicial bodies. Although these bodies differ in their institutional make-up and functions, a characteristic shared among them is their reliance on the contribution of individuals or entities other than the judicial decision-makers themselves. Unseen actors may take the form of registries, secretariats, law clerks and legal officers, but they also include non-lawyers such as translators, members of the medical profession and scientific experts. Some of these actors may be 'more unseen' than others but most remain nameless in the written decisions, and the extent of their contribution is generally unclear. The opaqueness of their role, combined with the significance of the judicial decision for the parties involved as well as for a wider range of stakeholders, raises questions about the impact of these unseen actors on the legitimacy of international adjudication as such. For example, an unseen actor's influence has formed a ground upon which an arbitral award was challenged, as substantial parts had allegedly been written by a legal assistant rather than the arbitrators themselves. The domestic court adjudicating the dispute in first instance set aside the award on a different ground, so it did not address this point; the case is currently pending on appeal. This book aims to answer such legitimacy questions and identify 'best practices', where feasible, through a multifaceted enquiry into possible common connections and patterns in the institutional makeup and daily practice of international courts and tribunals\"-- Provided by publisher.
Book
The role of precedent in the jurisprudence of the International Court of Justice: A constructive interpretation
In cases that come before the International Court of Justice (‘the ICJ’, or ‘the Court’), its own jurisprudence looms large. This is despite the fact that no rule of stare decisis operates before the ICJ. The juxtaposition of the facts expressed in these two statements has generated significant doctrinal and theoretical debate. In this article I propose a novel theoretical framework for understanding the role that precedent has traditionally played in proceedings before the Court, and that which it should play in the future. This theoretical framework rests upon a constructive interpretation of the doctrine of stare decisis. I examine the historical institutional practice of the Court in order to determine the range of possible versions of the doctrine which, in Dworkin’s words, ‘fit’ this practice. Noting that there is more than one potential version of stare decisis which fits the Court’s practice, I next consider which is justified as the version which best reflects the value of this doctrine. Having shown that the value that stare decisis strives to achieve is contextual justice, I argue that only a weak version of horizontal stare decisis can justify this doctrine. My ultimate claim is that the Court’s principal concern when considering whether to follow or depart from its own jurisprudence should be that of achieving justice in the context of that particular case, and not merely ensuring consistency, predictability or efficiency.
Journal Article