International Courts and the Ouroboros: Legitimacy in the Age of Populism

[Shagnik Mukherjea is an undergraduate student at the Rajiv Gandhi National University of Law, Punjab, India]

Introduction

Globalization, nation-states, and democratic politics cannot fully coexist—only two can be sustained at any given time. In his 2000 paper, Dani Rodrik introduced this idea as the political trilemma of the world economy. He predicted that nation-states would eventually give way to globalization, but not without significant resistance as governments would seek to reclaim sovereignty over issues they believed had been taken over by external actors. This relatively straightforward framework has proven remarkably accurate in explaining contemporary political developments, from the policies of the Trump administration to the policy proposals of far-right movements across Europe.

While most scholars have analyzed this theory through the lens of political economy, this article extends it to international courts. It identifies two distinct but interrelated arguments behind sovereignty-driven resistance to these institutions: (i) formalist legal critiques, which challenge the legal basis of international courts and their decisions, and (ii) policy-based critiques, which question the broader political, economic and social impact of these decisions. Understanding these critiques would therefore be essential for any meaningful discussion on reforming international dispute settlement mechanisms. However, it is important to caveat that this article raises more questions than it seeks to answer. Rather than prescribing definitive solutions, its primary objective is to identify and examine populist critiques of international courts, assess their impact on the legitimacy of these legal frameworks, and accurately problematize the broader populist resistance to international law.

Situating International Courts Within the Political Trilemma

In adapting the political trilemma to the present context, we can conceptualize globalization as the development of multilateral judicial mechanisms with varying degrees of enforcement and binding authority—designed to foster legal certainty and stability in the international sphere. For the purposes of this analysis, this would include a broad spectrum of judicial institutions, ranging from the International Court of Justice (ICJ) to international arbitration tribunals.

While international judicial and economic frameworks may function differently, two key similarities make the political trilemma useful for this discussion. First, both systems constrain state sovereignty in similar ways. Just as trade agreements limit economic policy choices, international courts also impose legal restrictions on states. Second, states often accept initial constraints voluntarily but later face expanding obligations they did not explicitly approve. In economic integration, this may occur through scope creep, where regulations gradually extend to new areas. In legal adjudication, a similar situation occurs through the evolutionary interpretation of international norms and precedents, aimed at reinforcing its ‘living’ nature.

With this in mind, the trilemma reveals a three-way tension between international adjudication, national sovereignty, and democratic politics, presenting states with three imperfect choices:

First, states can pursue both democratic legitimacy and international adjudication, but only by substantially ceding national sovereignty. The European Union’s judicial framework showcases this choice, where member states accept the supremacy of EU law and the binding authority of the European Court of Justice, effectively transferring significant judicial sovereignty to the supranational level.

Second, states can maintain international adjudication systems while preserving some degree of national legal sovereignty, but this comes at the cost of democratic accountability. Investor-state dispute settlement mechanisms illustrate this compromise. While states maintain sovereign rights to implement public policies, arbitral awards stemming from the fallout of these choices often bypass domestic courts and democratic processes, fueling significant public opposition, especially in developing nations where such mechanisms are seen as undermining democratic governance.

Third, states can preserve both sovereignty and democratic accountability, but only by withdrawing from multilateral judicial mechanisms. This pattern is increasingly evident in the rejection of a permanent multilateral investment court by developing states and threats of outright withdrawal from the European Convention on Human Rights. And as this article suggests, current populist trends suggest a decisive shift toward this third option.

Populism and the Changing Calculus

The jurisdiction—and by extension, legitimacy—of international courts fundamentally rests on state consent. While debates persist on whether factors such as perceived judicial independence or legal certainty influence an international court’s normative legitimacy (see Posner and Yoo and Helfer and Slaughter), the foundational premise of state consent remains unchanged. For this article’s theoretical framework, therefore, state consent is viewed as an extension of democratic choice, reflecting the collective will of a state’s people.

Within the liberal international order, states have traditionally submitted to international courts, recognizing that ceding some autonomy can bring tangible and intangible benefits. This is particularly evident in the case of economic globalization, where legal certainty and stability in foreign investments and trade incentivizes states to engage with international courts, and even comply with the occasional adverse ruling.

Populism, however, has disrupted this political and legal calculus by placing heightened (and perhaps excessive) emphasis on democratic accountability over the other considerations. Nonetheless, populist critiques of international courts typically fall into two categories: (i) legal critiques and (ii) political or policy-based critiques. While the latter frames international courts as threats to sovereignty and democratic governance, these arguments often stem from underlying legal concerns that lend credibility to broader populist resistance.

See, for instance, Kenya’s resistance to the International Criminal Court’s (ICC) investigation into its post-election violence. Kenya, backed by the African Union, resisted ICC jurisdiction, framing its intervention as an unjust infringement on its domestic processes. This rejection was not merely political rhetoric; it was also grounded in formal legal arguments, particularly the claim that the ICC had failed to respect the principle of complementarity by disregarding Kenya’s own national investigations. This legal critique of  violating the principle of non-intervention helped fuel broader political opposition, with the ICC increasingly depicted as an instrument of Western intervention disproportionately targeting African states. While a motion for mass withdrawal from the Rome Statute ultimately failed within the African Union, the populist reframing of the issue garnered significant domestic support.

Formalist legal grievances, therefore, often drive and sustain populist resistance to international courts. For example, the European Court of Human Rights has been criticized for overfitting legal dimensions within Article 8 of the European Convention on Human Rights, effectively imposing new legal obligations on states. Similarly, challenges to the ICJ’s expansive application of erga omnes standing combine legal and policy-based critiques, further eroding legitimacy. As a result, international courts face growing resistance not only from populist governments but also from their domestic constituencies that perceive international adjudication as a threat to their democratic agency.

This populist reframing of international adjudication, therefore, increases the costs of compliance with international courts while decreasing the costs of non-compliance or outright withdrawal from these international frameworks.

First, by portraying international courts as serving foreign elites at the expense of ordinary citizens, populist rhetoric increases the political and electoral risks of engaging with these institutions. Governments that comply with international rulings risk being seen as undermining national sovereignty or prioritizing foreign interests over domestic needs. Beyond electoral consequences, this erosion of legitimacy also weakens public trust in international courts, creating a feedback loop—as courts are perceived as illegitimate, compliance becomes even more politically costly, further incentivizing resistance. This effect is particularly evident in the ongoing UK-Mauritius negotiations over the Chagos Islands. Critics—including ministers and think tanks—have opposed any concessions by the Starmer government, citing both formalist legal reasons (highlighting the non-binding nature of the ICJ advisory opinion and ITLOS decision) as well as strategic and political concerns, particularly regarding the military bases on the islands.

Second, it reduces the reputational and political costs of non-compliance or withdrawal from international judicial mechanisms. As more states challenge the legitimacy of international courts, the stigma associated with defying rulings diminishes. This shift creates a permissive environment where non-compliance is not just normalized but reframed as an assertion of sovereign will, rather than a violation of international obligations—especially when there is little risk of retaliation. As a result, states can selectively disengage from international adjudication with minimal diplomatic or economic fallout, setting a troubling precedent that weakens the already fragile enforcement of international law.  For instance, US rhetoric against the ICC may act as a trigger, permitting other—typically Western—states to adopt non-committal stances on key legal decisions. A particularly stark result is France’s contradictory approach to head-of-state immunity, treating Vladimir Putin and Benjamin Netanyahu differently, despite both facing arrest warrants for war crimes and crimes against humanity.

Conclusion

Discussions on international courts and the rule of law have traditionally been framed within liberal internationalism. However, as this article illustrates, the rise of populist sovereignty-based claims reshapes the cost-benefit analysis of state engagement with these institutions. While international courts should not operate solely to maintain legitimacy by preempting state resistance, they must consider the broader policy implications of their decisions. In this regard, Dothan warns that international courts must explicitly account for potential backlash, cautioning against embarking on ‘suicide missions’ (p. 48).

Nonetheless, while solutions to the legitimacy crisis vary, international norms have increasingly become the default mechanism for addressing global governance gaps. This expansion, however, has fueled perceptions of international courts as an overreaching system that imposes obligations without sufficient democratic accountability.  Addressing these formal legal critiques—particularly those concerning judicial overreach—is therefore essential to reinforcing the legitimacy of international courts and ensuring continued state engagement.

After all, Rodrik’s political trilemma suggests that while the current phase of states aggressively reasserting sovereignty may dominate in the short term, it is not necessarily permanent. If globalization regains traction, international courts will likely operate in a transformed legal and political landscape. In the immediate future, however, international courts face mounting resistance. And it is in this present environment that international law (and its courts) has an opportunity to redefine itself—not as a discipline of crisis, but as a discipline of adaptation and resilience, capable of navigating challenges while remaining grounded in their foundational principles.

The author would like to thank Kusha Grover and Sarthak Sahoo for their comments on an earlier draft.