TY - JOUR
T1 - No longer a weak department of power? Reflections on the emergence of a new international judiciary
AU - Shany, Yuval
PY - 2009
Y1 - 2009
N2 - The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international dispute settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and non-state parties, and the growing inclination of national courts to apply international law. Arguably, these developments point to the emergence of a new judiciary the operation of which is governed by a new ethos (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution). The article then moves on to discuss some of the 'blind spots' of the present judicial institutional landscape, which includes a consideration of the remaining difficulties associated with addressing politically-charged conflicts before international courts (especially those relating to war and terror), and problems relating to the enforcement of judicial orders and judgments. While national courts can, in theory, fill some of these remaining gaps, their actual ability to do so remains unclear. In addition, the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: Co-ordination problems, and concerns relating to the effectiveness and legitimacy of international adjudication.
AB - The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international dispute settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and non-state parties, and the growing inclination of national courts to apply international law. Arguably, these developments point to the emergence of a new judiciary the operation of which is governed by a new ethos (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution). The article then moves on to discuss some of the 'blind spots' of the present judicial institutional landscape, which includes a consideration of the remaining difficulties associated with addressing politically-charged conflicts before international courts (especially those relating to war and terror), and problems relating to the enforcement of judicial orders and judgments. While national courts can, in theory, fill some of these remaining gaps, their actual ability to do so remains unclear. In addition, the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: Co-ordination problems, and concerns relating to the effectiveness and legitimacy of international adjudication.
UR - http://www.scopus.com/inward/record.url?scp=65449131258&partnerID=8YFLogxK
U2 - 10.1093/ejil/chn081
DO - 10.1093/ejil/chn081
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AN - SCOPUS:65449131258
SN - 0938-5428
VL - 20
SP - 73
EP - 91
JO - European Journal of International Law
JF - European Journal of International Law
IS - 1
ER -