Details

Autor(en) / Beteiligte

• Romano, Cesare P.R.

Titel

The Shift From The Consensual To The Compulsory Paradigm In International Adjudication: Elements For A Theory Of Consent

Ist Teil von

• New York University journal of international law & politics, 2007-07, Vol.39 (4), p.791-872

Erscheinungsjahr

2007

Quelle

Worldwide Political Science Abstracts

Beschreibungen/Notizen

• Contends that the overwhelming majority of new international courts & tribunals that have emerged in the last 10 years exercise compulsory jurisdiction with cases often, if not solely, brought unilaterally. In addition, it is argued that consent, which many view as a major impediment to international adjudication, has largely been circumvented even in those international for that center on the consensual paradigm. The shift toward compulsory adjudication is seen to have generated uncertainty at the international level as multiple bodies might find themselves involved in the same disputes, which raises questions of precedence, further complicated when one forum is consensual & another compulsory. Three reasons why "cluster litigation" or parallel or serial litigation of the same dispute before multiple international jurisdictions, is problematic are discussed: (1) There is a chance that multiple courts might interpret the law differently. (2) If the same case can be litigated in multiple courts, there can be no one jurisdiction of last instance. (3) State acceptance of multiple jurisdictions has implications for sovereignty. Three possible solutions to the disruption caused by nonuniform judicialization of international relations are presented: (A) the technocratic/legalistic approach, (B) the sociologic/jurisprudential approach, & (C) the nonengagement/disengagement approach. Finding flaws in each, some normative claims & suggestions for action are provided. D. Edelman