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

Abstract

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.

You’re Fired! International Courts, Re‐contracting, and the WTO Appellate Body during the Trump Presidency

“…The focus here on contextual factors and the process behind contestation of ICs resonates well with the propositions of the resistance approach and the wider literature on IC backlash, in particular research conducted by Caserta and Cebulak (2018), and Madsen et al (2018). Borrowing from that approach, this article puts the spotlight on the process behind the contestation of ICs rather than the outcome.…”

“…Resistance to ICs is often described as a situation whereby the workings of an IC are challenged (Alter et al 2016; Caserta & Cebulak, 2018; Madsen et al 2018). Resistance can manifest itself through a variety of forms, namely: pushback and backlash (Madsen et al 2018).…”

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

“…In their judgments, courts can avoid or expressly address controversial issues (Odermatt, 2018). When responding to resistance, ICs can either defer to the critique to rescue their authority or try to expand it (Caserta and Cebulak, 2018). ICs, however, ultimately play a limited role with regard to the final stages of such processes and the ultimate outcomes such as the enforcement of their rulings or decisions about institutional reform.…”

“…In other instances, even though the goals of the backlash were formally achieved, they were not implemented. An example of the latter was the backlash against the current CACJ after its rulings in favour of President Bolaños of Nicaragua in the context of a failed coup d’état (Caserta and Cebulak, 2018). The response, when the losing parties had regained political power, was to strip the court of its competence to rule over separation-of-powers matters, but the reform was never implemented.…”

Parting ways or lashing back? Withdrawals, backlash and the Inter-American Court of Human Rights

“…Authority is not a binary concept. Studies on ICs have revealed that it is necessary not only to contrast de facto and de lege authority, but also to make a more fine-tuned differentiation of authority itself (Alter et al ., 2016 b ; see also Caserta and Cebulak, 2018). It is obvious that an IC does not automatically ‘lose’ its authority by the challenge of one state party – however, its authority in the sense of the ‘legal capacity to determine others and to reduce their freedom’ (Bogdandy et al ., 2010) might undergo significant changes (Madsen, 2016).…”