Dejudicialisation of International Law and Future Trajectories

Abstract

Recent developments at the international level reveal that there is an increasing number of political resistances against international courts and tribunals as part of wide criticism of the basic principles of international law such as the rule of law, global governance, multilateralism and democratic liberalism. In this respect, the future and impact of the judicialisation of international law, which refers to the uneven increase in the jurisdiction and judicial activity of international courts, are questioned. Similarly, whether dejudicialisation which expresses the removal of the international courts’ power as a reverse movement, constitutes a new trend and will continue increasingly in the future has become relevant. There are certain assertions to defend the existence of international courts and the continuation of judicialisation –albeit at a slower pace– in the future despite the increasing incidence of dejudicialisation. Examples of extraordinary resistance which can trigger the dejudicialisation process are still exceptional and cannot completely eliminate judicialisation in current conditions. This argument has been reached by examining three recent backlash examples, including the withdrawals from the International Criminal Court (ICC), the paralysis of the World Trade Organization (WTO) Appellate Body, and the limitation of the jurisdiction of the South African Development Community Tribunal(SADC) Tribunal. Clearly, the displacement of international courts, which have become inseparable actors of international law, cannot be achieved by a few examples of extraordinary resistance, both in the present and in the near future.

Keywords

• state resistance
• judicialisation
• dejudicialisation
• international courts and tribunals
• populism