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Judging under Constraint
  • The Politics of Deference by International Courts
  • Theresa Squatrito
  • Coming soon
  • Expected online publication date:
    September 2025
    Print publication:
    31 August 2025
  • As international courts have risen in prominence, policymakers, practitioners and scholars observe variation in judicial deference. Sometimes international courts defer, whereby they accept a state's exercise of authority, and other times not. Differences can be seen in case outcomes, legal interpretation and reasoning, and remedial orders. How can we explain variation in deference? This book examines deference by international courts, offering a novel theoretical account. It argues that deference is explained by a court's strategic space, which is structured by formal independence, seen as a dimension of institutional design, and state preferences. An empirical analysis built on original data of the East African Court of Justice, Caribbean Court of Justice, and African Court of Human and Peoples' Rights demonstrates that robust safeguards to independence and politically fragmented memberships lend legitimacy to courts and make collective state resistance infeasible, combining to minimize deference. Persuasive argumentation and public legitimation also enable nondeference.

  • International Judicial Performance and the Law of the Sea

  • Part of
  • Theresa Squatrito
  • Journal:
    AJIL Unbound / Volume 115 / 2021
    Published online by Cambridge University Press:
    08 November 2021, pp. 399-403
    • Article
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      • Open access
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  • In “Judicialization of the Sea: Bargaining under the UNCLOS Regime,” Sara McLaughlin Mitchell and Andrew P. Owsiak examine the extent to which legalization and judicialization of the law of the sea has changed how states manage conflicts. They argue that legalization and judicialization have diminished maritime conflict because disputing parties are able to predict how a court would rule and, therefore, they will be more likely to bargain out-of-court to achieve more favorable outcomes. Their analysis suggests that how adjudicators perform as dispute resolution bodies is basically irrelevant. Drawing on the literature on the performance of international courts, this essay identifies numerous ways that the contribution of international courts to the resolution of disputes is contingent on key performance criteria, including legal clarification and compliance. When international courts perform at their best, judicialization enhances the impact of legalization. If performance is a contingent feature of international adjudication, then the generalizability of Mitchell and Owsiak's argument might be limited by the extent to which adjudicators achieve certain key performance criteria.

  • Judicial diplomacy: International courts and legitimation

  • Theresa Squatrito
  • Journal:
    Review of International Studies / Volume 47 / Issue 1 / January 2021
    Published online by Cambridge University Press:
    06 November 2020, pp. 64-84
    Print publication:
    January 2021

  • Observers of international courts (ICs) note that several ICs carry out a broad range of non-judicial activities, ranging from legal training workshops and public seminars to visits with public officials. Despite the growing prominence of these activities, they have received little attention from scholars. Seeking to fill this gap, this article examines these activities as a form of ‘judicial diplomacy’, asking how and why ICs employ judicial diplomacy. The article argues that ICs use judicial diplomacy as a means of legitimation. They seek to boost institutional legitimacy through their judicial diplomacy by targeting the public and communicating norm-referential narratives about their processes and outcomes. This argument bears out in case studies on the judicial diplomacy of the African Court of Human and Peoples’ Rights and the Caribbean Court of Justice. Both courts are shown to have judicial diplomacy that is public-oriented and people-centred. This argument has important implications for literature on international courts and the legitimacy of international institutions.

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