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 swing of the pendulum is evidenced by all kinds of manoeuvres aimed at obstructing, paralysing or even dismantling international courts and tribunals. Whereas 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.
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 has been exercised. It is true that exogenous factors, such as the crisis of multilateralism and the so-called re-nationalisation of authority, provide explanations for the ongoing attempts to delegitimise international courts and tribunals. However, endogenous factors relating to the inner workings of dispute settlement mechanisms have also been targeted. What has often been 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?