Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences

Alter, Karen J.; Gathii, James Thuo; Helfer, Laurence R.

doi:10.2139/ssrn.2591837

Cited by 25 publications

(55 citation statements)

References 26 publications

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“…Scholars have used the term backlash to describe resistance against investment arbitration (Waibel 2010;Caron and Shirlow 2016); NAFTA dispute settlement (Krueger 2003); the Court of Justice of the European Union (CJEU) (Alter 2000); international human rights courts (Sandholtz, Bei, and Caldwell 2017); the European Court of Human Rights (ECtHR) (Madsen 2016); the Inter-American Court of Human Rights (IACHR) (Helfer 2002); African regional courts (Alter, Gathii, and Helfer 2016a); and the International Criminal Court (ICC) (Helfer and Showalter 2017). There is a good deal of consistency in how scholars use the term.…”

Section: What Are Backlashes Against International Courts?mentioning

confidence: 99%

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Populism and Backlashes against International Courts

Voeten¹

2019

Perspect. polit.

107

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International courts, like domestic courts, protect liberal limits on majoritarianism. This sometimes puts these courts in a position to protect the property rights of the "corrupt elites" that are targeted by populists or the civil liberties of those who are targeted in domestic populist identity politics. Moreover, populism offers an ideology to attack the authority of a court rather than just its individual rulings. An empirical examination illustrates the plausibility of this argument. A large number of backlashes against international courts arise from judgments that reinforce local populist mobilization narratives. Populist backlashes against international courts are not just about sovereignty but often follow efforts to curb domestic courts, usually for similar reasons. Yet populist backlashes do not always succeed, either because populist leaders do not follow up on their exit threats or because populism is too thin an ideology for creating successful multilateral reform coalitions.

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Section: What Are Backlashes Against International Courts?mentioning

confidence: 99%

“…B oth the numbers of international courts 1 and their judgments increased markedly throughout the 1990s and the early 2000s (Alter 2014). More recently, however, these institutions have faced a growing backlash (Alter, Gathii, and Helfer 2016a;Sandholtz, Bei, and Caldwell 2017;Madsen, Cebulak, and Wiebusch 2018).…”

mentioning

confidence: 99%

Populism and Backlashes against International Courts

Voeten¹

2019

Perspect. polit.

107

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“…Karen Alter, James Gathii and Laurence Helfer, for example, highlight how the efficacy of tribunal backlash in subregional African contexts has been affected by the mobilisation of transnational non-governmental communities (government-independent bureaucracies, subregional parliaments and civil society). 92 Taking a contrasting tack, Mills and Bloomfield highlight the risks posed to the ICC by norm 'antipreneurs'. 93 In similar fashion, in respect of the extent to which tribunal backlash may be facilitated or impeded by broader international normative tendencies, a growing literature on resistance to and withdrawal from international organisations also suggests that tribunal backlash may be linked to a broader trend among governments to disparage international institutions and regimes.…”

Section: Constructivist Backlashmentioning

confidence: 99%

International Adjudication and Its Discontents: A Pluralist Approach to International Tribunal Backlash

Lovat

2020

Isr. law rev.

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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.

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“…15 In the IO legalization volume, Alter (2000) considers both forms of feedback effects. For literature on backlash, see Helfer (2002); Alter, Gathii, and Helfer (2016); Madsen, Cebulak, and Wiebush (2018). 16 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir.…”

Section: Phases Of Judicialized Politicsmentioning

confidence: 99%

Theorizing the Judicialization of International Relations

Alter

Hafner-Burton²,

Helfer

2018

SSRN Journal

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This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur-(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring-or threaten to bring-a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for authoritatively determining past violations of the law, identifying remedies for those violations, and preventing future violations. Because judicializing international relations occurs in multiple phases, in multiple locations, and involves multiple actors as decisionmakers, governments often do not control the timing, nature, or extent to which political and policy decisions are adjudicated. Delegation-and the associated choice of institutional design features-is thus only the first step in a chain of processes that determine how a diverse array of nonstate actors influence politically consequential decisions.

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Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences

Abstract: This article discusses three credible attempts by African governments to restrict the jurisdiction of three similarly situated sub-regional courts in response to politically controversial rulings. In West Africa, when the Court of the Economic Community of West African

Cited by 25 publications

References 26 publications

Populism and Backlashes against International Courts

Populism and Backlashes against International Courts

International Adjudication and Its Discontents: A Pluralist Approach to International Tribunal Backlash

Theorizing the Judicialization of International Relations

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