Why the Concern about Legitimacy of International Courts?
The first in the series of PluriCourts reading seminars discusses two core texts: one by Karen Alter and one by Armin von Bogdandy and Ingo Venzke.
Reading 1: Alter
Alter (2014). "Chapter 1: The New Terrain of International Law: Courts, Politics, Rights", The New Terrain of International Law: Courts, Politics, Rights.
The three primary objectives of this book are to reveal the paradigm shift of the contemporary international judiciary, conceptualize how new–style international courts (ICs) contribute to international politics, and normalize our understanding of international courts, seeing them first and foremost as courts, and second as international actors. The introduction defines key concepts and summarizes the main argument of the book. Section I – Courts – explains that today’s international courts (ICs) are fundamentally different from their predecessors. The vast majority of ICs today have new–style design features and increasingly apply international law that is embedded in domestic legal orders, and they have been delegated a broader range of judicial roles. Section II – Politics – explains how new–style ICs are able to alter domestic and international politics. Section III – Rights – explains how delegation to ICs contributes to generating and instantiating rights. Part IV provides a roadmap for the book. At the end of the chapter, I have appended an expanded table of context that includes abstracts of the book chapters and a case study index.
Why this reading?
Alter here argues that a new set of ICs require us to rethink the functions and impact of the international judiciary for domestic and international politics. Her claims of a 'paradigm shift' are based on several features of the new ICs, such as their independence of states, that are relevant across several disciplines. These new ICs may have intriguing implications for our understanding of sovereignty, the prominence of states as actors in the international system, judicialization of international relations, the social legitimacy of ICs, and possibly for the standards we use to assess their normative legitimacy.
Questions for discussion
- Which are the features of the new-style ICs which lead Alter to conclude that international law is no longer (only) contract based to rule-of-law based? Is that characteristization of rule of law plausible? Is it relevant for discussions of the 'constitutionalization' of international law?
- Is the 'paradigm shift' equally prominent across issue areas? What are the implications if the shift occurs generally, versus if the shift only occurs in some sectors?
- Alter identifies four judicial roles. Is this a convincing and exhaustive taxonomy which other authors share? She claims that some of these roles are mainly "other-binding" that serve to extend the central state’s power, while other roles are "self-binding" that check the state’s own exercise of power. Each ICs may serve several such roles, and this explains the power states have granted each. Does this match our research regarding ICs in different sectors?
- Which mechanisms or levers does Alter elaborate to explain the impact of ICs? Which of these apply to ICs in different sectors? How does that inventory compare to other scholars' accounts - such as those of Beth Simmons or Xinyuan Dai?
Reading 2: von Bogdandy and Venzke
von Bogdandy and Venzke (2012). "'In whose name?' An investigation of international courts' public authority and its democratic justification", The European Journal of International Law: 7-41.
In many grand theoretical sketches court judgments are epitomes of sovereign rule. How may such judicial power be justified nowadays? Many domestic courts decide in the name of the people and thus invoke the authority of the democratic sovereign literally at the very beginning of their decisions. International courts, to the contrary, do not expose in whose name they speak the law. This void sparks our driving question: how does the power of international courts relate to the principle of democracy? In other words, how can the rule of international courts be justified in accordance with basic premises of democratic theory?
Why this reading?
von Bogdandy and Venzke have formulated a well-informed and thought provoking analysis of why many now question the normative justifiability of international courts (ICs). Their list of symptoms, diagnosis and prescriptions have received well deserved attention by other scholars, and is often referred to.
Questions for discussion
- The authors list (p. 8) several possible strategies to justify the power of ICs, none of which they accept as sufficient. Is the list exhaustive? Do you agree with the reasons for dismissing the candidates?
- A central argument they make is that international courts make law, a task hitherto placed with legislative bodies which are democratically elected and make law 'in the name of the people.' Therefore, international courts' law making must also occur in a democratic way. Are these premises and argument convincing? Do they hold for ICs accross issue areas?
- The argument refers at times to Habermas' theories of legitimacy and democracy. How much depends on accepting Habermas' theories, and how much of the argument remains even if we replace Habermas' account with other theories of the value of and requirements of democratic rule?
This series of PluriCourts reading seminars will consist of 6 meetings in the spring of 2016. Each seminar discusses 2-3 readings. It is assumed that all participants have read the texts in advance of the meeting.