The development of an international judiciary depicts one of the greatest success stories in modern times. However, almost a century after the establishment of the PCIJ, international courts are facing serious challenges to their authority. Scholars and practitioners alike agree that international courts seem to be living in hard times. At the same time, the last decades brought about a sharp rise in international adjudication, both on a qualitative and quantitative level. International courts exercise various functions in international decision-making nowadays, often exceeding the traditional dispute-settlement role. This facilitates the politicization of international courts, whose exercise of authority comes under increasing pressure. In recent years, those processes of politicization and contestation raise the question whether a backlash against international adjudication has emerged.
This PhD research analyzes how international courts react to challenges to their authority by state parties. For this purpose, the study will trace back the interaction between dissenting member states and international courts by focusing on the cases, which show the most obvious objection to the authority of an international court, i.e. instances when an official state authority declares a decision by an international court non-executable or announced that it cannot be implemented.
The empirical analysis will feature a small number of case studies from different judicial fora, ranging from traditional dispute settlement bodies like the ICJ, to human rights courts such as the ECtHR and the IACtHR, to the WTO DSB and the ICC. Those international courts are embedded in an institutional framework, which includes parliamentary bodies, inter-governmental meetings, and administrative-technical organs tasked with monitoring state compliance. Therefore this study will examine the institutional responses of both the political and judicial body of an international organization by combining insights from public international law and neighboring disciplines such as international relations, political theory, and sociology, in particular institutionalist and organizational approaches.
The thesis seeks to contribute to the research along three dimensions: In a first dimension, it provides the theoretical toolbox to analyze processes of contestation, resistance, and backlash of international courts by combining insights from international law and international relations. In a second dimension, the empirical analysis generates a categorization of institutional conflict management techniques and examines whether variance regarding regime type and institutional structure can be identified. In a third, normative dimension, the thesis asks how the institutional reaction corresponds to the democratic legitimacy of international courts.