The Challenge of ‘Proliferation’: An Anatomy of the Debate

Abstract

This chapter provides an anatomy of the ‘proliferation’ debate. The impact of ‘proliferation’ on the international legal order is analyzed through the prism of three core questions: (I) legalization; (II) coherence; and (III) openness. The question of ‘legalization’ refers to the increasing availability and reach of international adjudication to address questions hitherto covered by considerations of sovereignty, non-intervention and political opportunity. In this context, the term ‘legalization’ is therefore a shortcut for the advancement of the judicial rule of law in international affairs. The question of ‘coherence’ encompasses issues such as forum competition and forum shopping, conflicting decisions, the role of precedent, the development/use of coordination techniques and/or of control systems. The question of ‘openness’ looks at the integration of values and interests protected by certain branches of international law into other branches. Openness is also important because the very existence and availability of international adjudication may shift the level at which certain decisions are made and, therefore, raise issues of transparency and participation in international proceedings. In conclusion, we offer some observations on a question where the three debates above intersect, namely the legitimacy of international adjudication (IV).