Posted: December 15th, 2022

Popular Resistance Against International Courts and Tribunals

Popular resistance against international courts and tribunals undermines their authority and leads to their disempowerment. Critically discuss.
[This question focuses on the resistance against international courts and tribunals, and more specifically, the resistance that has been fuelled by the populist movements (eg, nationalist movements). As discussed in the seminars (there was also an opportunity to discuss this topic in the online seminar), many courts have been facing some type of resistance from states and other actors, either pushback (eg, USA against WTO Appellate Body) or a backlash (eg, some Latin American countries, civil society etc, against ICSID). You should discuss whether such resistance is harmful for the courts (ie, undermines their authority and leads to their disempowerment), or whether courts and tribunals have developed effective strategies to respond to such resistance and the latter could actually serve as a springboard for improvement and systemic reforms.]
Useful sources:
– Romano et al, Oxford Handbook, Shany, Chapter 36, ‘Jurisdiction and Admissibility’
– Lowe and Collier, The Settlement of Disputes in International Law, pp 132-162
– Amerasinghe, Jurisdiction of Specific International Tribunals (2008),Chapter 2: Meaning of Jurisdiction in International Juridical Usage; Chapter 8: Admissibility
– Romano et al, Oxford Handbook, Chapter 37, Ronen and Naggan, ‘Third Parties’
– K F Gomez, ‘Rethinking the Role of Amicus Curiae in International Investment Arbitration: How to Draw the Line Favourably for the Public Interest’ (2012) 35 Fordham Int L J 510
– G Marceau and M Hurley, Transparency and Public Participation: a Report Card on WTO
Transparency Mechanisms (2012)
– Gabrielle Marceau & Matthew Stilwell, ‘Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies’ (2001) 4(1) JIEL 155
– Petros Mavroidis, ‘Amicus Curiae Briefs Before the WTO: Much Ado About Nothing’, in
Festschrift Für Claus-Dieter Ehlermann (Armin von Bogdandy, Petros C. Mavroidis & Yves Meny eds., Kluwer Int’l 2002)
– Dinah Shelton, ‘The Participation of Nongovernmental Organizations in International Judicial Proceedings’ 1994 88(4) AJIL 611-642
– N Grossman, H Cohen, A Follesdal, G Ulfstein (eds) Legitimacy and International Courts (CUP 2018)
– Alter, Karen J., James T. Gathii, and Laurence R. Helfer. 2016. ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’ European Journal of International Law 27(2): 293–328
– M Langford and D Behn, ‘Managing Backlash: The Evolving Investment Treaty Arbitrator? (2018) 29(20) EJIL 551

– M Madsen and P Cebulak and M Wiebusch, ‘Backlash Against International Courts: Explaining the Forms and Patterns of Resistance to International Courts’ (2018) International Journal of Law in Context 14(2)

– E Voeten, ‘Populism and Backlashes against International Courts’ (2019)
https://www.cambridge.org/core/journals/perspectives-on-politics/article/populism-and-
backlashes-against-international-courts/22D6468FD3316BB74A63BAD7BBAE8E5C

Popular Resistance Against International Courts and Tribunals

Introduction
The authority of international courts and tribunals has been examined by several scholars through distinct lenses. The different methods include using an abstract sociological model to look into what the judges have done to spearhead improvements in their daily functions and boost the legal system’s coherence in their respective institutions. Over the course of discussing the performance of these institutions, one prevalent issue has been the resistance that the organizations face which jeopardize their authority and lead to disempowerment.
As international courts and tribunals focus on their core task of dispute adjudication, they experience rapid growth which comes together with an increased power across distinct domains. The institutions get criticized on matters of legitimacy, the origins of the law, the processes they follow and interpretations used in solving those disputes. For instance the Appellate body of the World Trade organization has faced constant criticism on its interpretations as it is typically considered to be very broad thus failing to achieve better environmental protection. The legitimacy concerns will arise from the outputs of these institutions such as the huge backlog of cases in the European Court of Human Rights or the minimal cases finalised at ITLOS (International Tribunal of the Law of the Sea).
This has been unfortunate considering the initial promises that came with inception of these courts and tribunals. It is now common to see governments that were once supportive of the institutions being among the strident critics. Such events increase concern on why the support is declining and why the extreme “backlash”. The critics will happen in the widespread debates that affect international adjudication on a wider scale. The backlash will entail activities that go beyond resistance with the intention of reducing authority, competency levels and the court’s jurisdiction. This impedes the court from functioning independently and efficiently.
This research paper seeks to delve into the 9issue of popular resistance against international courts and tribunals. With a discussion of the resistance faced at the World Trade Organization Appellate body, the main objective is to understand the impact this resistance will have on the institutions’ authority and how it leads to disempowerment. The resistance to be considered will mainly be from the United States to the Appellate Body.
International Courts’ Authority and Legal Empowerment
The authority of these institutions arise from recognizing that they have an obligation to fulfill as per their distinct rulings and the meaningful engagements that will result in actions that will push towards having the rulings followed in full effect. Currently, there are three levels of this authority; narrow authority, intermediate authority and extensive authority. The existence of narrow authority happens when the parties involved in the disputes carry out relevant steps that illustrate being compliant to the institution’s rulings. Intermediate authority entails having the rulings also respected by future litigants and the “compliance partners” such as judges and agency officials. Extensive authority will exist when the audience of these institutions goes beyond the compliance partners to reach a wider scope of actors sucha the civil societal groups, legal academics and bar associations. Notably, these authorities will not increase incrementally since an international court could have extensive authority in the wider legal circles and general public but have the parties directly affected by the rulings not complying with them.
In understanding the model of authority and their operating contexts in an institution, one needs to consider the external factors influencing their authority either political, legal or societal, the available modes for the international judges internally and externally to be influential on their respective audience and contexts, how they build their trust ane the different challenges they face. An assessment of the World Trade Organization (WTO) Appellate body was done through this model to find that the institution does have authority on all levels. Rulings done by the Appellate body normally considers the constituencies as they are binding to them. It considers business interests’ the interactions between trade and the environment and the different views on the advantages from globalization and interdependence. While there are many concerns in what informs the decisions from the Appellate body, the truth of the matter is that external opinions have an influence on their decisions.
Legal empowerment entails the use of the law, legal systems and dispute resolution avenues by the poor or marginalized in the society to make improvements or transformations in the social, political and economic situations. The empowerment of international courts and tribunals is achieved through legal mobilization. They get empowered when they get the variant resources regularly and substantially for them to be in a position to make strategic decisions that will achieve a substantive effect. To this effect, the resources will have them making sure that their rulings are implemented, ensure diversity in the enforceable laws, and apply the different relevant norms which are associated with the justice mechanisms, statutory laws and judicial precedents. It is essential for these legal institutions to look towards integrating social, political and legal strategies so that they achieve progressive social change in pursuit of being legally empowered. Legal mobilization is linked with proper political activities for instance lobbying key stakeholders to enforce efforts that are in line with achieving desired outcomes and behaviors.
Popular Resistance Against International Courts and Tribunals
As at 2001, the several steps already taken by the international community towards achieving international justice would start encountering an increasing political opposition. Both sides of the Atlantic experienced electoral changes which led to political leaders offering lesser support to the institutions. For instance the unilateralist policies that were implemented by President Bush during his reign were hostile to the global institutions. Europe would also have a number of new governments come into effect which will cause the European Union to have a reduced willingness to stand against the hostility. In Septmeber, 2001, the American ivernment shifted its focus ands support from international law to dealing with combatting terrorism. The following year, 2002, Bush’s administration initiated a global movement that would undermine and marginalize the ICC (International Criminal Court). The country’s numerous efforts to resist the ICC happened concurrently to the increased rates of disenchantment from other powerful security council members. The latter were disappointed in the ad hoc tribunals that were expensive and had procedures that were very slow. They became skeptical on how useful these tribunals were yet the costs were increasing together with a waning of political and financial support. The increased pressures would lead to the emergence of second generation mechanisms to deal with international criminal justice. These were the hybrid international tribunals focused on using the different degrees of global involvement to offer justice.
The aforementioned were just illustrations of the several resistance challenges that the international courts and tribunals have had to deal with from the global community. However, some states still utilize the international courts to prosecute the serious international crimes that apply the universal jurisdiction laws. While for any backlash that the international justice system continues to deal with remains appalling, it is now no longer a surprise considering the significant advancements that have occurred over the years. The advancements make it difficult for abusive state officials to have their entitlements fulfilled in the higher levels. The main challenge currently is achieving a collaboration within the challenging global environment while the national courts found it hard to prosecute the most severe crimes. Key stakeholders continue to state that it is important that the benefits accrued from the institutions of international justice are preserved. The global system needs to be made stronger until the national courts increasingly take up their front-line role of combating crime and impunity in their jurisdictions.
The United States Resistance to the World Trade Organization (WTO) Appellate Body
The WTO is a global organization focused on the administration of trade rules and agreements. These agreements are negotiated by all the members so as to remove any barriers and formulate rules that are non-discriminatory for streamlined trade activities. It is also a forum utilized in solving trade disputes.
The United States was a major proponent of the formulation of a dispute resolution mechanism that would be a replacement of the prior General Agreement on Tariffs and Trade (GATT) process. The dispute mechanism system would entail a process of two stages to determine whether a nation has violated the rules and downplayed the bargain existing within countries. The first stage is when an adhoc panel does an assessment of the facts of the case in line with the WTO regulations that apply to rule on whether the violation has occurred. If the parties in the case are not satisfied, then they would request the Appellate body to review the ruling made by the ad hoc panel. The Appellate body has seven individuals with at least three with the responsibility of making a ruling on the appeal.
From the time the rules at the WTO allowed for an almost automatic implementation of the panel reports, the United States started to look for methods to revoke the fallacious panel decisions before they became binding duties. It was expected that appeals would be minimal and limited to a smaller scope of law queries. Nonetheless, the access to the Appellate body was important to make sure that the members could easily challenge the rulings from the ad hoc panels and also to measure consistency in the disputes coming from similar legal texts. However, the United States would fight this believing that the body was instead the one making the errant decisions. This would justify the blocks they placed on imminent appointments.
Currently, Trump’s administration is adopting the unilateralism approach which will have it solve its trade disputes alone, through tariff walls, trade barriers among others, and not use the legal arguments. The United States is stained that it is better off in a system that is power based even in the law of the jungle. The present administration has hence, hindered the naming of new judges that would take office in the Appellate body. The fact is that no new ones have been made replacements to the justices who had their terms expired. If they would continue with hindering this, the body would soon have one judge after two of them leave at the completion of their terms. It will be difficult for the members to use the services in seeking trade justice as there will be no way for the large trade disputes being solved.
The reasons for all the resistance began from the onset of the WTO where a fundamental misunderstanding ensued on the dispute settlement system. Negotiators at the time from the United States and even the present negotiators believe that they have a secure way of ensuring other member states play by the set rules and trade rules ingrained in the country;s domestic law. For instance, the regulation on the ability to place tariffs on nations that face dumping accusations at lower costs should be respected as if it was an agreement made at the WTO. Nonetheless, the Appellate body has over time made rulings that the tools in the country that have been honored for some time are illegal. One of them was the countervailing obligations on nations that flooded its market or harmed its manufacturers. On the other hand, Europens and other member states have termed the formation of the trade regulator being similar to the international court. Therefore, the judges can interpret trade law and formulate the relevant precedents. This is the argument that the United States has been rejecting all along.
A huge percentage of the other members in the WTO hold no divergent degrees of skepticism towards the concerns raised by the United States. Some of them claim that the country is overreaching for the losses made in particular cases. They state that allowing the members leaving the Appellate body to finish their duties is common sense as it will save both substantial time and the expenses attached to bringing in a new set of body members. Notably, they do agree that the failure of the body not finishing within the ninety day period does violate the rules of the WTO. However, they also sympathize with the curtailed body that needs to handle a considerable number of sophisticated appeals. On one hand, here is the United States that views the Appellate body as having formulated a law. On the other hand, the European Union views the same as a proper interpretation of texts.
Impact of the Resistance on the Authority of the International Courts
It is typical to find resistance being viewed as an attempt or reverse trial in law towards the international courts or tribunals that is triggered by respective trends adopted. The famous cases of resistance or backlash will entail events that the counter attacks led to significant changes in the institutions’ jurisprudence or structure. Nonetheless, whatever the kind of resistance a country brings to a court or body, it is highly likely to affect its authority negatively.
Several scholars have given reasons as to why some nations would choose not to be supportive to the international institutions. For some regions where the states are facing limited statehood, the nations may simply be lacking the capacity to heed to the norms. Nonetheless, the Rome Statute was formulated to defeat this challenge. It is the complementary tentet that will differentiate the state willing and can hold trials for wrongful doings from the countries that cannot. For the countries in the latter category, then ICC has been granted authority to deal with the crimes in those areas. However, while one gets insight on the authority granted to the ICC, there are some aspects such as politics that also determine the behavior of a state before this court. The countries with a limited capacity in their institutions, politics is a key element in choosing to support or disagree with the court’s investigations. This also applies in countries that have integrated institutions of rule of law which are called to offer support to the court’s operations as third party countries. When politics plays a huge role in determining the countries’ interests on peace, security and stability, then it becomes a considerable driver in the decisions made in regards to recognizing or withholding support to the ICC. Issues like these will undermine the authority of the ICC because at the end, it finds it challenging to enact rulings that they are sure will be implemented by the countries involved and the whole audience of its members.
Currently, the WTO has been dealing with an ongoing challenge of maintaining its fragile extensive authority which it has gained over the years. WTO has steadily worked on its authority from its inception period but that does not mean that it was secure. As other international courts and tribunals, the WTO also faces the challenge of compliance from its members. These organizations will require its members to utilize the dispute settlement mechanisms and implement the rulings from the Appellate body in order to reinforce the latter’s authority. Failure to adhere to the rules or pay required compensation leads to an undermined authority which deters private actors from choosing the body as it loses its reliability.
The United States recent actions of delaying their obligations to the Appellate body has been undermining its authority. The members of the organization need to recognize the fact that the Appellant’s formal legal authority is interpreting WTO law. Nonetheless, evading their duties does impede the body’s entire power to create measures that will have a meaningful impact on the behavior of those involved. Apart from the foot dragging by the United States in terms of naming the three needed members of the Appellate body, the country intentionally delays in enacting the rulings from the court. These intentional delays will have allowed it to make changes slowly to the current practices. It has been noted that when members “foot-drag” on their obligations, it actually gives them more flexibility to formally comply with the rulings but will not suffer any economic repercussions accrued from the delay.
This conduct is common in the safeguard cases where the WTO will offer permission to one member to hold on to a safeguard action against imports for 36 months without facing any retaliation. These cases generally have particular conditions attached to them. Since the WTO cases take a similar period of 36 months on litigation, and also the lack of retrospective remedies for any violations, the affected member could easily enforce an illicit safeguard with impunity for a particular period. This move is a replica of what taken by the United States did in the steel safeguards case adopted in 2002 during Bush’s Administration. Another case is when India lost in the India-Autos case which involved the United States. However, India was also able to draw out the dispute resolution mechanism and went on developing its local manufacturing intelligence to enhance its competitiveness in the automobile industry.
Currently, The United States and other member states have abandoned the WTO for their trade negotiations such as in the increased preferential trade agreements. This is especially in the negotiation agreements that involve substantial proportions in global trade. Notably, while new agreements will adopt new mechanisms sas they are formulated, the Appellate body will retain its dominant position due to the multilateral publicity it has. This characteristic will aid it to induce members to comply on account of wider reciprocity and the effect on their reputation.
Generally, the authority of the Appellate body will continue to be affected negatively if the United States, European Union and other members opt to utilize the other bilateral and plurilateral dispute resolution methods. Further weakening of this authority impedes its reach towards getting the resources it deserves. These countries and other private players will resist from offering their support which comes in different functions. These resources are essential for the organization to meet its functions. Constraining the resources only brings another challenge of constrained services.
A diminished authority and failure to have the required resources leads to an Appellate body being disempowered. An organization that has less active members is less likely to attract attention for the legal, social, political and economic spheres. It finds it difficult to garner support from external sources since the internal members are portraying lack of support for its own organization. A disempowered body will easily get disoriented towards achieving its primary objectives.
Empowering the International Courts and Tribunals
International courts and tribunals have a primary objective of upholding judicial independence and impartiality across their distinct jurisdictions. While there is no systematic hierarchy for these institutions, it is essential that the members understand that international law is a legal system. It is not an assembly of rules and principles that have been randomly collected. Therefore, the courts and tribunals do play a substantial contribution in elaborating law treaties, state responsibility regulations, the regulations affecting the sea, armed forces, human rights, territorial sovereignty among others. The elaborations that are formulated are generally applied and will be followed with other judicial players including its developers. To this effect, the courts and tribunals are a major part of a larger system that is important in the current environment. It is only prudent that they are accorded the authority they deserve and empowered with all kinds of resources they need.
According to the rational-system approach, an effective firm is one that meets its goals. Therefore, international courts and tribunals can have their effectiveness assessed from the goals’ perspective. Each of the courts and tribunals were formulated with a particular set of goals in mind. Furthermore, these objectives could have been updated considering the change in times. Therefore, it is only prudent the key stakeholders go back to the drawing board and assess the primary reasons for their existence. The discussions need to consider updating the goals to meet the current interests of the involved parties. This will ensure that the objectives set will not leave any member disgruntled. It is advisable that the discussions on identifying the primary goals are preceded with relevant goal-setters to increase the potential of creating desirable outcomes.
Subsequently, for the institutions working towards and meeting the desired goals will have members also having their interests met. It will be difficult to find members fighting the rules set out by the institutions but being intentional in complying to the rules. The support will attract the support of other external entities aht the organization becomes empowered constantly.
Additionally, there have been a series of research projects that are mainly focussed on policies suggesting having a dominant group of stakeholders. This dominant group is known as the mandate providers who will createm fund and monitor the institutions. They will also have power over their activities. Other functions that these providers also include regularly revising the legal mandates of these courts and tribunals, formulate relevant laws considering the evolution in the legal environment and also in the entire relevant aspects and oversee the effectiveness levels of the institutions. The effectiveness considered their performance which will lead to making strategic choices that will reverse any negative trends.
The constant monitoring of these operations by the mandatory will ensure that the courts and tribunals are constantly updated in meeting the interests of their members. A realistic perspective is incorporated into recommending the use of mandatory providers. The reality of the legal environment involves constantly benchmarking against the influential institutions and making improvement decisions. For any of the goals that these providers formulkate , they typically include the principal benchmarks that will be compared to the achievement results of the courts and the judgments that have been given in distinct cases. These results will help in determining whether a court needs to be in operation or not. The reforms implemented in the courts and tribunals are bound to improve the structure and processes of the existing courts.
Conclusion
It cannot be refuted that international courts and tribunals are an important element in achieving international justice in the global environment. The more globalized the world is becoming, the more the interactions and also the conflicts that will need to be handled. These courts will be needed to accord the right rulings that are fair and impartial for the parties involved. However, the formulation of these courts occurs through different members partnering and agreeing to be governed by the set rules. However, over time the interests among the members have changed such that the courts do not meet them any more. The conflict of interest will lead to high levels of resistance towards the courts. Unfortunately, the resistance especially from the members leads to undermining the institutions’ authority and causing disempowerment. It is only prudent that better measures are improvised to deal with the resistance and see these institutions stand in the midst of all conflicts.

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