Theorizing the Judicialization of International Relations

Abstract

This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur-(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring-or threaten to bring-a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for authoritatively determining past violations of the law, identifying remedies for those violations, and preventing future violations. Because judicializing international relations occurs in multiple phases, in multiple locations, and involves multiple actors as decisionmakers, governments often do not control the timing, nature, or extent to which political and policy decisions are adjudicated. Delegation-and the associated choice of institutional design features-is thus only the first step in a chain of processes that determine how a diverse array of nonstate actors influence politically consequential decisions.

The matrix reloaded: Reconstructing the boundaries between (international) law and politics

“…143 This literature seeks to leave behind the classical assumption that 'legalized domestic politics must be fundamentally different from legalized international politics'. 144 Other voices, however, have criticized the idea of an almost linear process of judicialization on the international level by pointing to recent 'backlashes' for various courts, which might even lead to the reverse process of 'dejudicalization' and the 'reacquisition of power by executives and legislatures'. 145 Yet, what unites both camps is that Morgenthau's paradigmatic tenet, i.e., that some conflicts in international politics are not justiciable, has become a testing ground for empirically-oriented social sciences using the vocabulary of delegation, authority, legitimacy, and effectiveness.…”

The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform

“…We challenge this common understanding of judicial impact by investigating the surprising politics behind what we call the shadow effect of courts: Policymakers preemptively altering actions or policies because of their anticipation of judicial review. We propose a novel theory of courts' shadow effects that significantly broadens the scope for inquiry on "the judicialization of politics" (Shapiro and Stone Sweet 2002, Ferejohn 2002, Hirschl 2008, Alter, Hafner-Burton and Helfer 2019): If judicial review can impact policymaking even where the dogs did not bark, then "the radiating effect of courts" may be more encompassing than is often presumed (Galanter 1983, 118).…”

Law and Politics in the Inter-American Court of Human Rights

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Over the last two decades, political scientists have increasingly turned their attention to the legalization and judicialization of world politics (Alter, Hafner-Burton and Helfer, 2019; Goldstein et al, 2000) and to the activities of international courts (ICs) (Alter, 2014). Employing large datasets of cases, particularly from the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR), and the World Trade Organization's Dispute Settlement Mechanism (WTO-DSM), scholars have investigated a number of questions important to the study of judicial politics.

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