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International judicial performance and the law of the sea

Squatrito, Theresa ORCID: 0000-0002-6726-7629 (2021) International judicial performance and the law of the sea. AJIL Unbound, 115. pp. 399-403. ISSN 0002-9300

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Identification Number: 10.1017/aju.2021.58


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.1 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-ofcourt 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. Performance can be conceived as the extent to which international institutions, such as courts, achieve substantive and procedural goals.2 It describes the outcomes achieved (or not) by courts and the processes by which they operate. A perspective based on performance puts the outcomes and processes of international courts at the center of analysis, as opposed to reducing international law and international courts down to their existence and acceptance by states. Extensive research shows that international judicial performance varies substantially across several key performance criteria, not to mention across courts and over time. Against this backdrop, I reflect on how court performance bears on Mitchell and Owsiak’s argument.

Item Type: Article
Divisions: International Relations
Date Deposited: 26 Nov 2021 17:06
Last Modified: 26 Nov 2021 17:06

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