International Judicial Review Research Articles

Three Paradigms of International Judicial Review

Abstract The forms of intervention of international courts in domestic affairs could be divided into three broad paradigms: (1) the Westphalian Paradigm, (2) the Hierarchical Paradigm, (3) the Network Paradigm. According to the Westphalian Paradigm, the role of international courts is to coordinate the interactions of sovereign states. According to the Hierarchical Paradigm, international courts initiate social change by issuing judgments that require states to amend their practices. Naturally, under this paradigm, courts are concerned about their ability to secure compliance with their judgments but also about the legitimacy of their decisions and their ability to make good policy stipulations. According to the Network Paradigm, international courts are embedded within a vast web of actors with different interests. This chapter will survey the three different paradigms of international judicial review and demonstrate the unique considerations international courts need to take into account under every paradigm.

Controlul judiciar internațional al excluderii unui stat Membru din Consiliul Europei

The exclusion of a Member State from the Council of Europe is an international legal sanction subject to international judicial review, of an indirect nature (with only one exception), carried out either within the Council of Europe (by the European Court of Human Rights and the Administrative Tribunal) or from outside (by the International Court of Justice), both by the contentious function and by the advisory function of the international court (with only one exception). Judicial review never leads directly to the annulment of the exclusion act or to the reinstatement of the State as a Member of the Council of Europe.

When Should International Courts Intervene? How Populism, Democratic Decay and Crisis of Liberal Internationalism Complicate Things

Abstract Shai Dothan’s book International Judicial Review aims to refute criticism which stresses international courts’ (ICs) lack of legitimacy, epistemic inferiority, suffocation of public deliberation, susceptibility to capture and production of bad outcomes. This essay argues, however, that there is an important line of criticism of ICs stemming from a profounder disagreement with the post-Cold War international legal system – the critique related to ethno-national and/or authoritarian populism – which poses novel challenges to justifying ICs. Engaging with Dothan’s arguments through the prism of the populist backlash, this essay contributes to recent scholarship on populism and international law by explaining how populism challenges the justification of IC interventions. Populists treat majority will and national/regional identity as the exclusive sources of the common good, and this casts doubts on arguments favouring multilateralism, such as the Condorcet Jury Theorem used by Dothan. It also allows populists to re-frame IC interventions as threats to people’s well-being and disseminate ‘counter-myths’ delegitimizing ICs, which may impair ICs’ ability to produce good outcomes. Altogether, populism has the capacity to increase the costs of international judicial intervention for ICs and reduce the costs of non-compliance and exit for the populists, which confronts IC scholars and judges with new challenges.

Beyond Backlash: The Consequences of Adjudicating Mega-politics

This article concludes the special issue on “The International Adjudication of Mega-Politics”. It examines the implications of adjudicating mega-politics for politics, for society, for the case at hand, and for the ICs involved. We draw on the findings of the special issue contributions, identifying the many strategies that ICs use to rule on the issue without inciting a political backlash. The conclusion also develops further the claim that the international adjudication of mega-political disputes is not necessarily democracy undermining. The analysis ends up questioning whether we should be worried about ICs adjudicating mega-political disputes. The cautiously salutary findings do not mean that all involved should welcome more adjudication of mega-political disputes. It is generally better for stakeholders to resolve their disputes themselves, so long as minority and vulnerable individuals and groups are not thrown under the bus in the process. The findings of this special issue do, however, mean that the international adjudication of mega-politics, while deeply frustrating for political leaders that would prefer to ignore international law, is perhaps not something that should be avoided wherever possible. Circling back to Ran Hirschl’s original concern about juristocracy, the overall finding is that international judicial review need not contribute to juristocracy. Instead, international legal review of mega-political cases may be a limited but nonetheless consequential fail-safe against the alternative of unfettered and unquestioned actions and interpretations of international law, rendering international law a rule-by-law tool of heads of state.

International Judicial Review: When Should International Courts Intervene?, written by Shai Dothan

International Judicial Review: When Should International Courts Intervene?, written by Shai Dothan

The subjects of spatial statism: Reclaiming politics and law in international entanglement: Afterword to the Foreword by Ran Hirschl and Ayelet Shachar

Abstract In their Foreword, Hirschl and Shachar challenge the supposed contemporary decline of state sovereignty and describe the enduring and expansive spatial reach of state power to counter threats to sovereign territorial control. This Afterword looks into the normative foundations of this account and its consequences for public international law and for international courts, in particular. “Spatial statism” exposes, I argue, a disjunction between the concepts of state sovereignty and popular sovereignty—and thus disrupts the normative expectation that those subject to the law are also its authors. It is this expectation that international judicial review must seek to restore. The attempt to do so is burdened by analytical and practical difficulties. But the project, I argue, is essential. In confronting the new “spaces” of international entanglement, judges must redeem the idea that citizens might yet reclaim those entanglements as a “common world,” not just a space in which they are brought together, unfreely, under the mantle of state coordination and coercion.

On Einsteinian waves, international law and national hats: Afterword to the Foreword by Doreen Lustig and J. H. H. Weiler

This article offers a critical reading of Lustig and Weiler’s Foreword article by focusing on the emphasis placed by the authors on the phenomenon of international judicial review and the hierarchical reception of international law by domestic judges as the core features of a second wave of judicial review, interacting with judicial review under domestic laws, characterized as the first wave of judicial review. It first asks whether we can abstract a general wave of international judicial review from the broad range of judicial decisions of international courts and tribunals and proposes that there may be much less international judicial review in the international system than proposed by the authors to make a wave. Second, it holds that where we have international judicial review, such review does not necessarily promote the idea of the hierarchy of international law over domestic law. There are different ways of being an internationalist and a hierarchical positing of international law has always been one option of many. In conclusion, I hold that these two critical inquiries into the second wave have repercussions on the reactionary framing of the third wave of judicial review. Reactionaries, and there are plenty, may be taking issue not only with international law as hierarchical law but also with the very idea of international law or even some basic tenets of public law.

Tracking justice democratically

Is international judicial human rights review anti-democratic and therefore illegitimate, and objectionably epistocratic to boot? Or is such review compatible with—and even a recommended component of—an epistemic account of democracy? This article defends the latter position, laying out the case for the legitimacy, possibly democratic legitimacy of such judicial review of democratically enacted legislation and policy-making. The article first offers a brief conceptual sketch of the kind of epistemic democracy and the kind of international human rights courts of concern—in particular the European Court of Human Rights. The article goes on to develop some of the relevant aspects of democratic theory: components of an epistemic justification for democratic majority rule, namely to determine whether proposed policy and legislation bundles are just, and providing assurance thereof. Several critical premises and scope conditions are noted. The article goes on to consider the case(s) for international judicial review, arguing that such review helps secure those premises and scope conditions. The article finally considers the scope such review should have—and some objections to such an account.

‘Objective Reasonableness’ as a Standard for International Judicial Review

‘Objective Reasonableness’ as a Standard for International Judicial Review

Rethinking the International Investment Law System

The debate over investor-state dispute settlement (ISDS) has been increasingly contentious, while at the same time becoming less focused on the substantive issues involved. This article seeks to provide a balanced critique of ISDS, emphasizing three main points: (1) foreign investment today is often courted by host governments, rather than treated badly; (2) in today's globalized world, the distinction between 'foreign' and 'domestic' investment is less clear; and (3) international judicial review is a controversial idea that should be pursued with some caution. It also suggests alternative approaches to dealing with any negative treatment that foreign investors face.

The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory

The Article addresses some of the disagreement concerning the legitimacy of the international human rights judiciary. It lays out some aspects of a theory of legitimacy for the international human rights judiciary that seem relevant to addressing two challenges: First, it is difficult to justify the human rights judiciary by appeal to standard accounts of why states agree to subject themselves to treaties. What is the problem the international human rights judiciary is meant to help solve? Second, the human rights judiciary seems undemocratic and even antidemocratic when it overrules domestic, accountable legislatures. Such international judicial review is therefore sometimes thought to be normatively illegitimate, at least regarding democracies.

The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory

The Article addresses some of the disagreement concerning the legitimacy of the international human rights judiciary. It lays out some aspects of a theory of legitimacy for the international human rights judiciary that seem relevant to addressing two challenges: First, it is difficult to justify the human rights judiciary by appeal to standard accounts of why states agree to subject themselves to treaties. What is the problem the international human rights judiciary is meant to help solve? Second, the human rights judiciary seems undemocratic and even antidemocratic when it overrules domestic, accountable legislatures. Such international judicial review is therefore sometimes thought to be normatively illegitimate, at least regarding democracies.

The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights

The literature concerning judicial review reveals a long list of misgivings of such constraints on domestic democratic decision making. Of concern here are some of the principled objections against the practice of international judicial review of human rights, using the European Court of Human Rights (ECtHR) as a suitable case. This court monitors the European Convention on Human Rights (ECHR), and is among the most powerful treaty-based courts. Still, the ECtHR respects States’ discretion in the form of a Margin of Appreciation. And it exercises what is sometimes referred to as review. That is: the ECtHR can find a law or its application to be incompatible with the ECHR, but this does not directly affect the validity of that law in the domestic legal system. Nor does the ECtHR replace such laws with one of its own making, as some forms of strong judicial review would.When we ask about the normative legitimacy of such laws, treaties, and bodies, different theories will approach the matter quite differently. The presentation of objections to such international review and responses to them show the implications of different ways to bring normative requirements to bear on institutions. To bring this out, the focus is on two main concerns. Such review seems to violate the commitment to political equality expressed by majority rule, and it is thought to rely on a problematic, predatory conception of human nature. Jeremy Waldron, Richard Bellamy, and others have argued these concerns, often from quite plausible normative premises concerning an individual’s sense of justice and the need to avoid domination. Section 1 presents these criticisms. Section 2 then sketches an alternative way to bring normative requirements to bear on institutional design - Liberal Contractualism - which stands in some contrast especially to that of Waldron. Three main features are laid out, to bring out weaknesses in how Waldron and Bellamy use their normative premises to assess a practice or an institution. Central to this liberal contractualism is a particular institutionalist approach, and a concern for trust-building institutions among individuals who are “contingent compliers” with a sense of justice. This account is somewhat more kindly disposed toward international judicial review of human rights, at least in principle. Section 3 then goes back to the criticisms presented in section 1, and considers the merits of each. Section 4 concludes by identifying some of the weak spots in the case for international human rights review as hitherto made.

THE REVIEW OF THE UNITED NATIONS SECURITY COUNCIL DECISIONS BY THE INTERNATIONAL COURT OF JUSTICE

The present topic has been extensively addressed by several authors during the 1990s. It has provoked harsh polemics and a passionate debate and still represents an issue of interest for the international lawyers, as no formal and complete answer to the question of the international judicial review has been brought to this day. This article tries to put forward an effective and efficient mechanism allowing the International Court of Justice to review the resolutions adopted by the Security Council in the realm of Chapter VII of the UN Charter. The approach of the subject is favourable to an international judicial review, which would render the intervention of the Council more legitimate, hence more easily accepted by states. The proposed method of judicial review must however ensure both the legitimacy and the efficiency of the political organ and strengthen, not weaken the United Nations' role in the maintenance of international peace and security. That is why the international judicial review mechanism should be carefully defined and should confer upon the international judge a limited power of appreciation. At the same time, the other international courts and tribunals should defer to the International Court on matters concerning the legality of the Security Council's coercive measures by means of a preliminary ruling mechanism.

Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry

Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry