RESILIENCE TECHNIQUES OF INTERNATIONAL COURTS IN TIMES OF RESISTANCE TO INTERNATIONAL LAW

International courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.

Western centrism, contemporary international law, and international courts

The article unpacks the notion of western centrism in contemporary international law by developing a framework to capture its varied patterns. It argues that western centrism can have three different manifestations – systemic, evaluative, and professional – depending on whether it refers to the rationality, the narratives, or the actors at play in the international legal field. The article then discusses three theoretical approaches that can help scholars dealing with western centrism in international (legal) scholarship. These are: (i) the critical readings of those scholars that explain international law through the lens of power and domination; (ii) the Stanford school of sociological institutionalism, which explains international institutions and norms through the role of culture and global scripts; and (iii) post-Bourdieusian reflexive sociology, which analyses the roles of transnational legal elites in colonial and post-colonial settings. Finally, the article reconstructs the experience of the Caribbean Court of Justice in the light of western centrism, demonstrating that, different from what is often argued in the literature, the Court is not a failed replica of the Court of Justice of the EU, but an institution in its own right, with its own approach to international law, its own successes and failures.

Judicial diplomacy: International courts and legitimation

Observers of international courts (ICs) note that several ICs carry out a broad range of non-judicial activities, ranging from legal training workshops and public seminars to visits with public officials. Despite the growing prominence of these activities, they have received little attention from scholars. Seeking to fill this gap, this article examines these activities as a form of ‘judicial diplomacy’, asking how and why ICs employ judicial diplomacy. The article argues that ICs use judicial diplomacy as a means of legitimation. They seek to boost institutional legitimacy through their judicial diplomacy by targeting the public and communicating norm-referential narratives about their processes and outcomes. This argument bears out in case studies on the judicial diplomacy of the African Court of Human and Peoples’ Rights and the Caribbean Court of Justice. Both courts are shown to have judicial diplomacy that is public-oriented and people-centred. This argument has important implications for literature on international courts and the legitimacy of international institutions.

International Courts in Latin America and the Caribbean

The book provides the first in-depth and empirically grounded analysis on the foundations and trajectories of gaining authority of the four Latin American and Caribbean regional economic courts: the Central American Court of Justice (CACJ), the Caribbean Court of Justice (CCJ), the Andean Tribunal of Justice (ATJ), and the Mercosur Permanent Review Court (PRC). While these courts were, on their terms, established to build common markets and to enforce trade liberalization, they have often developed bodies of jurisprudence in domains often not directly associated with regional economic integration. The CCJ has been most successful in the area of human and fundamental rights; the CACJ has addressed issues related to the enforcement of the rule of law in national legal arenas and long-standing border disputes between the countries of the region; the ATJ is an island of effective adjudication on intellectual property issues; and the PRC has significantly struggled to receive a significant number of cases to rule upon all together. The particular trajectories of the four Latin American and Caribbean Regional Economic Courts (RECs) suggest that there is no universal formula for success for these institutions and that their operational path is not necessarily a function of their formally delegated competences and/or of the will of the Member States, as it is often argued in mainstream legal and political science literature. Rather, local socio-political contextual factors—such as the historical legacies of a region, the interests and dynamics of socialization of legally and politically situated actors, the nature of national and regional politics, and legal culture—often play a far more decisive role in influencing the direction of RECs during and after their establishment.

The Challenged and Challenging De Facto Authority of the Central American Court of Justice at the Intersection of Pacification, International Law, and Regionalism

This chapter deals with the trajectory of gaining de facto authority of the Central American Court of Justice (CACJ), showing how, different from the Caribbean Court of Justice (CCJ), this Court has thus far failed to leave a significant mark in its operational context. In its early years, the Court fared rather well, especially in terms of its capacity to build a system of community law and to address some institutional difficulties of the Central American Integration System (SICA). However, when the Court became involved with several highly political disputes (i.e. a political clash between two former Nicaraguan Presidents and some territorial disputes among its Member States) in the early 2000s, it encountered strong resistance from several actors in its context of operation. As in the analysis of the CCJ, this chapter explains the fluctuation of the CACJ’s authority by looking at the role played by various contextual factors such as the institutional conflicts between the various organs of Central American integration, the highly polarised national politics of some of the Court’s Member States, and the divergent professional interests of the Central American legal elites.

The Theory and Practice of Founding Regional Courts in Latin America and the Caribbean

This chapter compares the foundations of the Central American Court of Justice (CACJ) and the Caribbean Court of Justice (CCJ) with those of the Andean Tribunal of Justice (ATJ) and of the Mercosur Permanent Review Court (PRC). The goal is to provide general considerations related to the actors and factors that may be deemed of central importance for founding regional courts, and to confirm the value of the approach taken in this book. Similar to those of the CACJ and CCJ, the foundations of the ATJ and of the Mercosur PRC also extended over relatively long periods of time and were finally unlocked by the occurrence of events that were only partially and indirectly related to the two Courts. Against this background, the chapter draws general theoretical conclusions on the foundations of Regional Economic Courts (RECs) in Latin American and the Caribbean.

The De Facto Authority of the Caribbean Court of Justice at the Intersection of Trade Liberalisation and Fundamental Rights

This chapter deals with the trajectory of gaining de facto authority of the Caribbean Court of Justice (CCJ), showing how, in its first fifteen years, the Court has been relatively successful as it achieved both narrow and intermediate authority in both its jurisdictions. The chapter shows how this authority was mostly due to several institutional choices of the part of the Court’s founders and to some bold—yet well-balanced—rulings of the Court, which contributed to overcoming the Caribbean legal elites’ initial lack of trust. The progressive expansion of the Court’s authority occurred mainly in matters relating to individual and fundamental rights (i.e. on death penalty issues and freedom of movement of individuals within the Caribbean Common Market (CARICOM)), while it struggled to move beyond a basic form of authority on trade-related matters. This variable authority of the CCJ proves to be grounded in the operational context of the Court. The most notable difficulties faced were the lack of interest of the business community in judicial solutions, the limited powers granted by the CARICOM Secretariat to file non-compliance cases before the Court, and the reluctance of national judges to engage in a constructive dialogue with their regional counterparts through the medium of the preliminary reference procedure.

The Extended Foundation of the Caribbean Court of Justice between Decolonisation and Globalisation

This chapter deals with the extended process of creation of the Caribbean Court of Justice (CCJ) arguing that, different from what often stated in the literature, the Court is the institutional crystallisation of two long-enduring movements within the Caribbean legal field. One of these two movements is linked to the development of early regionalism, and ties into the Court’s origins as a regional economic institution aimed at reviving the Caribbean Common Market (CARICOM). The other is a movement related to the long-lasting process of Caribbean decolonisation from the United Kingdom, as the CCJ is also intended to be a regional Supreme Court to replace the Privy Council as the apex court of the former British West Indian colonies. The chapter also analyses the window of opportunity leading to the creation of the Court, most notably the clash between different generations of Caribbean legal elites and their own respective disagreements with the Judicial Committee of the Privy Council on death penalty issues and, more generally, on how to handle the judicial system of the Caribbean countries.

The Extended Foundation of the Central American Court of Justice between Pacification and Globalisation

This chapter deals with the extended process of creation of the Central American Court of Justice (CACJ) arguing that, similar to the Caribbean Court of Justice (CCJ), the Court is also the institutional crystallisation of the different movements that characterised the Central American legal field over time. One of the movements leading to the creation of the CACJ is highlighted in the literature on the proliferation of international courts (ICs), according to which the Court is an EU-style regional economic court whose aim is to enforce the policies of the Central American Integration System (SICA). The other movement, pursued by more local elites, is concerned with the long-lasting project of pacifying and democratising the region by legal and judicial means. In addition to examining the dynamics at play during this extended foundation, this chapter also looks at the window of opportunity that led to the creation of the Court, which was found in the Esquipulas I and II peace negotiations and the need to strengthen economic integration at the end of the Cold War.