The International Judicial Function Under Pressure

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About the Research Project

Having reached its zenith at the beginning of the twenty-first century, the international judicial phenomenon may well have since then embarked on a steep descent towards its nadir. The judicialisation of international relations is no longer met with jubilation but with reluctance and, at times, downright hostility. The swing of the pendulum is evidenced by all kinds of manoeuvres aimed at obstructing, paralyzing or even dismantling international courts and tribunals. While some high-profile cases, such as the crisis faced by the Appellate Body of the WTO, monopolise the debate, the disenchantment that characterises our times is neither restricted to particular categories of disputes or dispute settlement mechanisms, nor confined to certain regions of the world. The growing apprehension is reflected in the rapidly expanding literature devoted to the study of the legitimacy and authority of international courts and tribunals, as well as in the contributions that investigate forms and patterns of resistance, from mere pushback that seeks to impact the outcome of future cases, to actual backlash aimed at triggering institutional reforms or at pulling mechanisms to shreds.

While contemporary research aims to address backlash against international courts and tribunals from a multidisciplinary perspective, thus unifying the field by bringing legal scholars, sociologists and political scientists together, the purpose of this research project is to ascertain, through mixed methods relying on qualitative analysis, whether adjudicators share part of the blame for the current socio-legal context. In particular, the research project aims at determining whether correlations can be established between backlash and the way the judicial function is being exercised. Judges and arbitrators are after all increasingly being accused of having exceeded their powers and de facto trespassed into what should have been achieved through negotiation rather than litigation. While exogenous factors, such as the crisis of multilateralism and the so-called re-nationalisation of authority, undoubtedly provide explanations for the on-going attempts to delegitimise international courts and tribunals, one should not forget that endogenous factors relating to the inner workings of dispute settlement mechanisms are also being targeted. What is often being criticised are alleged patterns of activism, overreach and judicial law making.

The research project will provide an inventory of the criticisms relating to judicial overreach, as well as a catalogue of the proposed corrective devices that tighten the leash on supposedly reckless international courts and tribunals. The project will then assess whether the criticisms are justified and whether the rectifying devices are compatible with the proper exercise of the judicial function, or rather worse than the perceived disease they seek to cure. No comprehensive study has provided a crosscutting empirical overview of the criticisms and corrective mechanisms involved. The specific and practical aim of the project is thus to fill a gap, one that requires answering a twofold question. What are the boundaries of the international judicial function and what constitutes interference in the exercise of that function?