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Nonparticipation and Perceptions of Legitimacy

Mar 31, 2020

Bernard H. Oxman

Volume 46 (2019) - Issue 1

The view that participation by the respondent state enhances the perceived legitimacy of international judicial or arbitral proceedings may play a significant role in a decision not to participate. Such a decision may be prompted by political rather than legal considerations. The object of nonparticipation may be to facilitate exercise of a political option of noncompliance with the judgment or award, notwithstanding prior agreement that it is legally binding. If so, then the basic issue is not nonparticipation as such, but rather noncompliance with a legally binding award or judgment, as well as a legally binding commitment to arbitrate or adjudicate disputes. This raises fundamental questions regarding the role of legitimacy, and indeed the rule of law, in international affairs.