Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights

Soley, Ximena; Steininger, Silvia

doi:10.2139/ssrn.3156199

Cited by 8 publications

(9 citation statements)

References 24 publications

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“…The US withdrawal from the ICJ following the Nicaragua case (1986) did not have such effects and the court is still in operation. The same goes for other examples of withdrawal from ICs, including Trinidad and Tobago and Venezuela's departure from the IACtHR (Soley and Steininger, 2018). The imminent departure of the UK from the EU and the Court of Justice of the European Union (CJEU) is also unlikely to have an effect on the general operation of the court.…”

Section: Unpacking Backlash: Pointed Reactions and Structural Cleavagesmentioning

confidence: 70%

“…In contrast to the everyday practice of ordinary critique of the law, we find extraordinary resistance . This form of resistance differs because it is not only targeting the contents of the law itself, but also targets the institutions as such and their authority (for a comparable position, see Sandholtz et al ., forthcoming, 2018; see also Soley and Steininger, 2018). It can be described as a more revolutionary resistance, as it seeks an institutional transformation or even a suspension or closing of an institution.…”

Section: Unpacking Backlash: Pointed Reactions and Structural Cleavagesmentioning

confidence: 99%

“…This type of critique might challenge and even undermine the authority of an IC and can therefore be qualified as extraordinary critique. Examples of such backlash against ICs can be found inter alia in Latin America (Soley and Steininger, 2018) and Africa (Alter et al ., 2016 a ). The current Brexit discussion is another example.…”

Section: Factors Influencing Resistance To Ics: a Roadmap For Empiricmentioning

confidence: 99%

“…We return to this point further below. Our approach also seeks to avoid the teleology implicit in much scholarship on backlash against ICs, where an evolution from minor disagreement to ultimately backlash in terms of a gradual escalation of conflict is often assumed (compare Soley and Steininger, 2018). Rather than assuming such conflict-escalating models, our model, exploring the forms and patterns of resistance to ICs, suggests that resistance to ICs can be both evolutionary and sudden.…”

Section: Introductionmentioning

confidence: 99%

See 3 more Smart Citations

Backlash against international courts: explaining the forms and patterns of resistance to international courts

Madsen

Cebulak

Wiebusch

2018

International Journal of Law in Context

105

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The paper investigates and theorises different forms and patterns of resistance to international courts (ICs) and develops an analytical framework for explaining their variability. In order to make intelligible the resistance that many ICs are currently facing, the paper first unpacks the concept of resistance. It then introduces a key distinction between mere pushback from individual Member States or other actors, seeking to influence the future direction of a court's case-law, and actual backlash – a critique triggering significant institutional reform or even the dismantling of tribunals. On the basis on the proposed theoretical framework, the paper provides a roadmap for empirical studies of resistance to ICs, considering the key contextual factors necessary to take into account in such studies.

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Section: Unpacking Backlash: Pointed Reactions and Structural Cleavagesmentioning

confidence: 70%

Section: Unpacking Backlash: Pointed Reactions and Structural Cleavagesmentioning

confidence: 99%

Section: Factors Influencing Resistance To Ics: a Roadmap For Empiricmentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

See 2 more Smart Citations

Backlash against international courts: explaining the forms and patterns of resistance to international courts

Madsen

Cebulak

Wiebusch

2018

International Journal of Law in Context

105

View full text Add to dashboard Cite

show abstract

“…Finally, we do not focus on dedicated human rights courts because RECs allow study of the conditions allowing regional judicial institutions to achieve authority beyond their formally delegated powers 9 . Although human rights courts have also encountered various patterns of resistance when getting involved with highly political matters (Soley and Steininger, 2018), they are more likely to get involved with sensitive issues. RECs, instead, are more exposed to resistance when they are perceived as expansionist in their practices.…”

Section: Introductionmentioning

confidence: 99%

The limits of international adjudication: authority and resistance of regional economic courts in times of crisis

Caserta

Cebulak

2018

International Journal of Law in Context

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The paper compares the involvement of four regional economic courts in legal disputes mirroring constitutional, political and social crises at national or regional levels. These four judicial bodies of the EU, the Andean Community, the East African Community and the Central American Integration System have all faced varied forms of resistance to their involvement and their general authority. By comparing these four case-studies from across the globe, the paper identifies institutional and contextual factors that explain the uneven resistance. While the regional economic courts in Central America and East Africa were subject to backlash from the Member States, their counterparts in Europe and Latin America avoided backlash but at the price of achieving only a narrow authority.

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The Rule of Advice in International Human Rights Law

Contesse

2021

Am. j. int. law

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Advisory jurisdiction is a ubiquitous feature of international human rights adjudication. Yet the attention of legal scholars is almost entirely devoted to contentious jurisdiction. This Article aims to fill that gap in the literature. By introducing two models of advisory jurisdiction, and analyzing the example of the Inter-American Court of Human Rights-the world's most active international advice-giver-the Article shows how international human rights courts may utilize advisory proceedings to influence state conduct, in a mechanism the Article calls "ruling through advice." The Article also shows how human rights courts may attempt to guide states and national courts, by addressing questions that are likely to arise, in a mechanism the Article calls "anticipatory adjudication." Using the Inter-American Court's groundbreaking advisory opinion on same-sex marriage as a case study, the Article argues that, despite the domestic implementation of its opinion, the Court misused its advisory powers, putting the regional human rights system at risk. The insights that both the conceptual model and the case study offer may contribute to a larger conversation about international courts' advisory role.

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Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights

Cited by 8 publications

References 24 publications

Backlash against international courts: explaining the forms and patterns of resistance to international courts

Backlash against international courts: explaining the forms and patterns of resistance to international courts

The limits of international adjudication: authority and resistance of regional economic courts in times of crisis

The Rule of Advice in International Human Rights Law

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