Academic journal article International Social Science Review

The Ties That Bind: How Domestic Politics Influence Ties with Extraterritorial Courts-A Study of the JCPC

Academic journal article International Social Science Review

The Ties That Bind: How Domestic Politics Influence Ties with Extraterritorial Courts-A Study of the JCPC

Article excerpt

During the last half century, extraterritorial courts and the number of acceding states have markedly increased. As Robert Koehane notes, better theories of domestic politics are needed to bridge the gap between external and internal environments in a systematic way. (1) Therefore, it is important to better understand the relationships between the extraterritorial court and the state. This paper posits that the governments of those states will seek a change or disengage from the extraterritorial court if they perceive a disconnection between themselves and the extraterritorial court. The perception of such a disconnection is influenced by changes in the political environment that make the state more sensitive to decisions that are unfavorable to it. To test this theory, this paper examines arguably the first and best example of an extraterritorial court, namely the Judicial Committee of the Privy Council (JCPC). An examination JCPC decisions where the state is a party to the appeal in the context of different political environments demonstrate that unfavorable decisions in themselves do not move the state to abandon the court. Conversely, favorable decisions do not perpetuate access to the JCPC. These findings suggest that the decisions of the court are not sufficient cause for the state to abandon the court. This work is a first step in broadening our understanding of the linkage of states and extraterritorial judicial institutions in the context of domestic political environments.

State sovereignty is linked to autonomy and can be defined as possessing specific capacities or powers that can be utilized without the consent or approval of another. (2) Extraterritorial courts are institutions that states accede to and delegate decision making authority. (3) This effectively outsources a judicial function traditionally considered a part of the domestic domain. Relying on an extraterritorial court as an appellate court for an independent state is fundamentally incompatible with the modern notion of sovereignty. (4) Recognition of the need for more research into the connection between domestic and international politics goes back at least fifty years, with the call for development of a linkage theory that is supported by a research agenda on national-international flows of influence. The absence of such a theory was due both to the lack of communication between those who specialize in national politics, those who specialize in international relations and the radical revision of the standard conception of politics that this theoretical approach would entail. (5)

Exemplary of the need to better understand the link between the domestic political environment and relationships with extraterritorial courts follows a series of decisions by the European Court of Human Rights (ECtHR) denying the United Kingdom (U.K.) the right to deport suspected terrorists. (6) The 2015 political environment--with the Conservative Party in power--was quite different from that of 1988, under the Labour Party when Parliament ratified the Human Rights Convention in 1998 and acceded to the ECtHR. Furthermore, the unfavorable decisions of the ECtHR came at a time when the governing Conservative Party had publicly expressed its policy objective of limiting the jurisdiction of the ECtHR in the U.K. However, discord in the governing coalition has led to no action being taken. In June 2015, Prime Minister Cameron from the governing Conservative Party was cited by Watt for refusing to back away from the pledge to withdraw the U.K. from the ECtHR. (7) Prime Minister Cameron claims that the court's decisions impinge on British sovereignty. (8) Furthermore, he refuses to rule out abandoning the European Convention on Human Rights unless the U.K. can win the right to veto decisions of the ECtHR. When questioned directly by fellow Conservative Party Member of Parliament Andrew Mitchell however, Prime Minister Cameron stated that there are no immediate plans to abandon the ECtHR. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.