Loading...
Non-Judicialization and Dejudicialization in International Law
Casas, Manuel
Casas, Manuel
Citations
Altmetric:
Abstract
This Article examines two specific manifestations of backlash against international courts: dejudicialization and non-judicialization. The former refers to the removal of certain issues from international adjudication; the latter to the deliberate refusal to submit certain issues for international adjudication in the first place. The Article relies on two of Michael Reisman’s main ideas that are helpful for a nuanced analysis of backlash: his distinction between the “myth system” and the “operational code” and his characterization of international law as “archipelagic.” Although backlash is often negative, sometimes shifting certain issues from the highly formalized “islands” of international adjudication to more informal “offshore” areas—where policy considerations are more easily deployed—may be more effective, particularly when current institutional arrangements are inadequate or ineffective. By applying Reisman’s theoretical insights, the Article demonstrates how understanding both the operational realities and varying degrees of formality in international law can help to better appraise these developments.