Marlene Wind: International Courts and Domestic Politics
Marlene Wind, professor at iCourts has published the book: International Courts and Domestic Politics
Since the establishment of the first permanent international court in 1922, states have created more than twenty-five international judicial bodies. This cascade of international courts (ICs) and judicial institutions on a global scale – sometimes characterised as ‘the international judicialisation of politics’ – has accelerated since the end of the Cold War. The mandates of these ICs often go well beyond peace and arbitration to cover issues as diverse as human rights, market integration, criminal law, trade and investment. Moreover, new courts and tribunals are continuously being called for in issue-areas where they do not yet exist, such as the regulation of climate change or transnational corporate wrongdoing. In some areas, courts have arguably managed to expand their authority well beyond their original mandates, engaging in not only adjudicating, interpreting and monitoring international treaty compliance but also increasingly contributing to the making of international law (IL).
The two main parts of this volume thus serve to illustrate the diverse interplay between ICs and domestic politics. As Conant explains in her chapter, it is important to understand the processes of ‘court empowerment’ and ‘court containment’ theoretically, which legalistic approaches do not consider. Yet constitutionalists and realists have very different assumptions about the influence and power of international judicial bodies on the domestic level. Our point is that only by addressing these differences explicitly and in empirical case studies is it possible to grasp the full impact of the transformations that we are currently facing. Constitutionalists expect the power and influence of ICs to increase as the number of ICs grows. Realist approaches on the other hand link the influence of ICs directly to coercion and national interests. However, as Conant contends, the right answer is usually somewhere in between. Often ICs and IL have contingent effects on the ground as chapters by Webb, Wind, Ronen, and Ammann demonstrate in this volume. Governments and domestic courts – perhaps particularly mature democracies (and common law systems) – may not always feel a need to defer to IC decisions.