In 2017, I started to write and publish more directly on the issue of backlash and contestations regarding international law. This is actually an old theme for me as throughout my career I have investigated backlash, contestation over international law, and how international law and international courts fare in confrontations with nationalist and populist governments. I decided, however, to back to the drawing board and start over to conceptualize backlash politics.Some recent and older work is listed here.
Rethinking backlash politics
A recently published special issue Backlash Politics in Comparison, with Michael Zürn at the WZB. We held our first workshop in Berlin in 2017, and a second workshop at Northwestern University in 2018. The articles Conceptualizing Backlash Politics and Theorizing Backlash Politics appeared in November 2020. The project will continue as a book project after the Coronavirus pandemic.
International Adjudication of Megapolitics, with Mikael Rask Madsen. This project considers backlash by examining how international courts approach and weather megapolitics disputes, meaning disputes of issues with such high political salience that they divide whole polities. The special issue’s conclusion, “Beyond Backlash: The Consequences of Adjudicating Megapolitics” addresses this topic directly
Publications regarding international law and nationalist populist backlash
“The High Water Mark of International Judicialization” considers whether dejudicialization is likely, applying the Alter/Zürn backlash framework to the topic of the future of international judicialization. On SSRN, but written for a book in honor of David Caron.
The Future of International Law in Diana Ayton-Shenker ed The New Global Agenda, Lahnham: Rowman & Littlefield, 2018. Argues that the dynamics the make international law a useful political resource are not changing.
“The Contested Authority and Legitimacy of International Law: The State Strikes Back” Forthcoming in: Christopher Daase and Nicole Dietelhoff eds. Beyond Anarchy: Rule and Authority in the International System, 2018. On SSRN
“Critical Junctures and the Future of International Courts” Avidan Kent, Nikos Skoutaris & Jamie Trinidad (eds.), The Future of International Courts and Tribunals: Regional, Institutional and Procedural Challenges(Routledge, 2019). (will post in summer 2018)
Transplanting International Courts: Law and Politics of the Andean Tribunal of Justice (Oxford University Press, 2017) considers how the Andean Tribunal of Justice survived divisions between member states and the rise of national populism. Chapters 7 examines how the Andean Tribunal has handled mega-politics disputes with populist governments (Peru under Fujimori, Ecuador under Correa). Download a reprint of The Andean Tribunal of Justice: From Washington Consensus to Regional Crisis here.
Backlash against International Courts in West, East and Southern Africa. With Laurence Helfer and James Gathii. Download the PDF here. This article examines battles between African ICs and authoritarian governments in Zimbabwe, Gambia and Kenya.
The Empire of International Law? (review essay) American Journal of International Law, 113 (1): 183-199, 2019. Reviews 3 books that see international law as a tool of or a challenge to empire.
Theorizing the Judicialization of International Relations, International Studies Quarterly, 63(3): 449-463, 2019 (with Emilie Haftner-Burton and Laurence R. Helfer) We incorporate backlash as a feedback mechanism when international politics becomes judicialized.
Earlier publications where I engage the idea of backlash against international courts
Who are the Masters of the Treaty?: European Governments and the European Court of Justice. International Organization. 52 (1): 125-152. 1998. This article explains how the the European Court of Justice (ECJ) wrested control of European law from governments, and it discusses a failed British effort to curb the power of the ECJ.
The European Legal System and Domestic Policy: Spillover or Backlash? International Organization 54 (3):489-518. 2000. This article conceptualizes how the success of legal integration in itself contributes to backlash against the ECJ.
Backlash against International Courts in West, East and Southern Africa. European Journal of International Law 27 (2): 293–328. 2016. With Laurence Helfer and James Gathii. Download the PDF here. This article is mostly descriptive, focusing on three clear cases of backlash against African regional courts. We explain variation in the success of state-led backlash based on the ability of supranational commissions to mobilize civil society actors to monitor state behavior and defend the international court.
Legitimacy and Lawmaking: A Tale of Three International Courts Theoretical Inquiries in Law, Vol. 14 (2013) With Laurence Helfer. Download the PDF here. This article explains how expansionist law-making does not necessarily engender backlash.
Earlier and more recent research regarding the contested authority of international law
When and How to Legally Challenge Economic Globalization: A Comment on the German Constitutional Court’s False Promise Forthcoming in iCon and already on SSRN, this article advocates for a new and different conversation focused on when and how constitutional review can effectively and helpfully push back against the adverse impacts that economic globalization is creating.
Establishing the Supremacy of European Law: The Making of a Rule of Law in Europe (Oxford University Press, 2001) Analyzes legal contestation over the supremacy of European law.
National Perspectives on International Constitutional Review: Diverging Optics In Erin Delaney and Rosalind Dixon eds, Comparative Judicial Review Edward Elgar, 2018. Available on SSRN here. This article updates my work on national contestation regarding international law’s authority, contrasting the attitudes of national constitutional courts and international law.