About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

46 Ecology L.Q. 111 (2019)
International Courts and Democratic Backsliding

handle is hein.journals/eclawq46 and id is 123 raw text is: International Courts and Democratic Backsliding* Tom Ginsburg INTRODUCTION In his 2017 Charles N. Brower Lecture on International Dispute Resolution at the Annual Meeting of the American Society of International Law, David Caron considered the role of international adjudicators in dealing with the various social functions that are implicated by courts. 1 Drawing on ideas associated with Martin Shapiro, he noted a fundamental distinction between the functions of courts-which scholars have characterized as including lawmaking, social control, legitimation, and regime construction, among many others-and the task of adjudicators, whose core job is resolving the dispute before them on the basis of the relevant law. There is a great temptation, as Shapiro noted, for adjudicators to take broader social functions into account, but there are also great risks when there is a misalignment between these functions and the limited task of dispute resolution, in which judges are to some extent agents of the parties. Caron urged adjudicators to focus on the task rather than the functions, arguing that only by doing so could they preserve the integrity of the institutions they inhabit. It is a call, in some sense, for professionalism, self-awareness, and humility, virtues David embodied but which are in painfully short supply today. Caron's paradigm was a classical one of which he was fond, and the world he inhabited was the classic international law domain of interstate dispute resolution. Like Judge Thomas Buergenthal, David critiqued dicta in which the International Court of Justice expressed its sympathy for human rights victims, and urged the court to focus on the immediate legal task at hand.2 This seems correct to me, especially when coming from a dispute resolution perspective. But we must also recognize that in some fields, the task of judges is not adjudicating between sovereign equals, but rather explicitly developing the law. Human rights DOI: https://doi.org/10.15779/Z38K35MD9M Copyright © 2019 Regents of the University of California. * In Memory of David Caron 1. David D. Caron, The Multiple Functions of International Courts and the Singular Task of the Adjudicator, 111 AM. SOC'Y INT'L L. PROCEEDINGS 231, 231 (2017). 2. Id. at 237. 46 ECOLOGY LA W QUARTERLY 111 37 BERKELEY JOURNAL OF INTERNATIONAL LAW 265

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most