Backlash and the Contested Authority of International Law


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. Some recent and older work is listed here.

Publications regarding international law and nationalist populism

The Future of International Law in Diana Ayton-Shenker ed The New Global Agenda, Lahnham: Rowman & Littlefield, 2018.

“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.

Theorizing the Judicialization of International Politics.  On SSRN here, and forthcoming in International Studies Quarterly (with Emilie Hafner Burton and Laurence Helfer).  We incorporate backlash as a feedback mechanism when international politics becomes judicialized.

Current research on backlash politics (more generally)

I have a new project on  the Politics of Backlash, with Michael Zürn at the WZB.  We held our first workshop in Berlin in 2017, and a second workshop at Northwestern University in 2018. You can read about this project more on the Global Capitalism and Law research page.

This research will appear as a special issue of the British Journal of International Relations in 2020.We will publish the framing paper on SSRN in the fall of 2019.   The project will continue as a book project.


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 Research regarding the contested authority of international law

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.