Abstract
International tribunal backlash remains poorly understood: hampered by conceptual challenges, systematic research into the causes of this phenomenon remains nascent. 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 mixed 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 various instances. The article accordingly provides the building blocks for improved understanding of the causes of – and the potential scope to manage – international tribunal backlash across institutions, regions and sectors.
Highlights
International courts have been described as the ‘lynchpin’ of the post-Cold War ‘rules-based’ international order.[2]
In a 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 been cited in Latin America and the Caribbean, as well as in further African courts.[6]
Frédéric Mégret, for example, highlights that the International Criminal Court (ICC), like other international courts, is ‘highly dependent on the good will of sovereigns’, and ‘embedded... in the fabric of sovereignty.’[61]. Madsen et al observe that: ‘certain forms of actions require the involvement of governments, notably in many of the actions we describe as backlash: institutional reform, blocking appointments or withholding funding’
Summary
International courts have been described as the ‘lynchpin’ of the post-Cold War ‘rules-based’ international order.[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 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.
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