Populism Backlash International Courts

1.

Populism and the Backlash Against
International Courts

2.

Roadmap
• What is populism?
• Why target international courts?
• The backlash ladder
• Three case studies (ICC, Europe, Inter-American)
• What this means & what can help

3.

What is Populism?
• “The people” vs “the elites”
• “We have a direct mandate”
• Skeptical of courts and limits

4.

Why International Courts Become Targets?
• They can block or change government policies
security, migration, elections
• They review state actions across borders
cross-border courts check states
• Rulings can be costly at home
laws must change, money/time

5.

The Backlash Ladder
Exit
leave or limit the court’s power
Insulate
change local rules to weaken rulings
Obstruct
slow / partial compliance
Talk
attack “foreign judges”

6.

Case I — The International Criminal Court (ICC)
• Needs state cooperation to work
• When top officials are at risk → politics heats up
• Result: less cooperation, claims of bias/exit
1) Investigation → 2) Cooperation by States → 3) Arrests / Trials
If cooperation drops →
delays & non-compliance

7.

Case Study II — Europe (ECtHR & CJEU)
• ECtHR tensions
– Migration/security/prisoners’ rights → heated rhetoric; slower implementation
• CJEU clashes
– Judicial independence & primacy vs. sovereignty/‘constitutional identity’
• Membership crises reshape jurisdictional reach and compliance pathways

8.

Case Study III — Inter-American System
• Strong remedies on amnesties & separation of powers
• Threats to funding/jurisdiction; narrow implementation
• Polarization makes compliance a loyalty test

9.

Why This Matters
Why It Matters for the International Order
• Less predictability: rules start to look optional
• More power games: bargaining instead of law
• Copycat effects: others follow resistance
• Courts self-limit: smaller remedies to avoid fights

10.

What Helps?
• Domestic compliance constituencies
– Judiciaries, bars, civil society, media raise costs of non-compliance
• Judicial design & dialogue
– Phased timelines; pilot judgments; proportionality; engage state arguments
• Material incentives (where available)
– Funding, market access, conditionality
• Communication & transparency
– Judgment does require—and what it does not—to dispel myths about “foreign control.”

11.

Bibliography
• Mudde, Cas, and Cristóbal Rovira Kaltwasser. 2017. Populism: A Very Short
Introduction. Oxford: Oxford University Press.
• Madsen, Mikael Rask, Pola Cebulak, and Micha Wiebusch, eds. 2018. Resistance to
International Courts: Causes and Consequences. Cambridge: Cambridge University
Press.
• Alter, Karen J. 2014. The New Terrain of International Law: Courts, Politics, Rights.
Princeton, NJ: Princeton University Press.

12.

Thank you for the attention