Judicialization of International Relations

How did International Relations Become Judicialized?

In the age of monarchies, what we today call international law consisted primarily of agreements among kings and queens, enforceable through reciprocity by state leaders. This old conception of international law still exists in public law theory [Page 1378]and in international relations approaches that see international law as mere contracts between states. This view of international law is still voiced by governments when they assert that they have absolute sovereignty. But these are old-fashioned conceptions of international law, relics of another time and place. This “old terrain” of international law started to recede around the turn of the 20th century when domestic courts began hearing cases of alleged violations of what were largely unwritten international rules and when countries started negotiating and ratifying more detailed international treaties.

Since the end of the Cold War, international law and judicialized politics have entered a fundamentally new terrain where international treaties create binding laws, creating duties, expectations, and rights that penetrate the surface of the state. The new terrain of international law is the result of a double shift that has accelerated since 1945. One force leading to this new terrain is the substantive expansion of international law to cover issues that were traditionally governed exclusively by states. This expansion has been fueled by the rights revolution and the rising trend of governments exerting an extraterritorial reach to domestic laws. The rights revolution, which took off in the post–World War II era, is based on the premise that individuals have certain rights even if domestic constitutions or statutes do not explicitly recognize these rights. The United Nations General Declaration of Human Rights in 1948 created an aspirational goal, as the declaration itself was nonbinding. Civil rights movements of the 1960s pushed forward the development of binding international laws and treaties explicitly addressed to individuals. These rights are universal; thus, they do not depend on national ratification to exist. Meanwhile, governments in a number of capitalist countries constructed a law-based global international trade regime, and they expanded the extraterritorial reach of domestic property and antitrust rules so as to protect domestic economic interests and shape the way global forces affect domestic markets. With powerful countries already asserting an international reach to their global and domestic economic rules, the idea of increasingly coordinated international rules became a least bad alternative, even if these rules touch on issues that in theory remained the exclusive prerogative of states.

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