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14 Int'l J. L. Context 197 (2018)
Backlash against International Courts: Explaining the Forms and Patterns of Resistance to International Courts

handle is hein.journals/injwcext14 and id is 201 raw text is: International Journal ofLaw in Context (2018), 14, 197-220 doi:10.1017/S1744552318000034 ARTICLE Backlash against international courts: explaining the forms and patterns of resistance to international courts Mikael Rask Madsen', Pola Cebulak2 and Micha Wiebusch3 Professor of Law and European Integration, Faculty of Law, University of Copenhagen, and Director of iCourts, The Danish National Research Foundation's Centre of Excellence for International Courts; 2Assistant Professor in European Law, University of Amsterdam and formerly Postdoc at iCourts, University of Copenhagen and 3Researcher (PhD) at SOAS, University of London and IOB, University of Antwerp, and Associate Research Fellow at UNU-CRIS *Corresponding author. E-mail: mikael.madsen@jur.ku.dk Abstract The paper investigacts and teoris differita form and ptr resistanceiic to internasional oalist (I('s) anid dleveops anl analyt\ical fr~amc\ork, for- explaining their larability \. Inl order to make intelligible the1 resistance that manyr I('s are curnlacing, thie paper firs,[tlunpacks the conicept of resistance. It then introduces a key ti itinctioon between mer puhback from d u Member States or other actors, ing to iylesce seen furo dinresios o a cort's case-law, and actual baclcah oa crtique tiewrilg hig- nificant xalreform oreve the disicaning of tribulnal. On thybasis on the propoSd theoretical framecam e paper pl vidt e a roadimap or empirical sudies o rsistance to tCs il coni trg the i contextuial factors ncecssar to take into account1 inl such suis Keywords: international courts and tribunals; institutional reform; authority; resistance; empirical legal studies; globalisation 1 Introduction Recent years have seen growing resistance to international courts (ICs) in many parts of the world. The most striking example is the Southern African Development Community Tribunal (SADC Tribunal), which became a political target and ultimately was suspended when ruling on the highly controversial question of land rights in Zimbabwe (Nathan, 2013). Although perhaps an extreme example, the SADC Tribunal is not alone in having faced pushback and even backlash. The recent reforms of the European Court of Human Rights (ECtHR) in the form of the Brighton Declaration (2012) and resulting Protocols Nos 15 and 16 undoubtedly also implied a form of pushback. This was the first time in the more than fifty years of operation of the ECtHR that the Member States presented systematic critique and questioned its place in European law. The conclusion was that European human rights had to be rebalanced in favour of national institutions, both legal and political (Madsen, 2018b). The form of political pressure that built up in Europe in the early 2010s, notably in Russia and in the UK, was however not unique to Europe. While Britain contemplated leaving Strasbourg and the ECtHR, yet ended up leaving Brussels and the EU, a number of countries had already left the Inter-American Court of Human Rights (IACtHR), including Trinidad and Tobago and Venezuela. Moreover, the IACtHR witnessed resistance from domestic courts (Huneeus, 2011) - a phenomenon also well known to EU law, both historically (Alter, 2001) and currently (Dyevre, 2016; Kom~irek, 2012; Madsen et al., 2017). In the Eurasian region, the newly established Court of Justice of the Eurasian Economic Union (EAEU) represented in reality a step back compared to its predecessor, which could adjudicate cases brought by the regional Commission, and rule on preliminary references and issue advisory opinions when asked by national courts (Kembayev, 2016). In Africa, the SADC Tribunal has not been the only IC under political and legal pressure. A number of other African © Cambridge University Press 2018

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