Growing legitimacy concerns against international courts: PluriCourts adapts its research strategy

On 2 November, PluriCourts received a positive assessment by the Research Council of Norway and will continue for its second term. PluriCourts launches a revised research plan to address increased criticism against several international courts.

PluriCourts passed the mid-term evaluation and will receive funding for another 5 years, starting in April 2018.

For the first five years of its existence, PluriCourts conducted research on the legitimacy of international courts (ICs) structured around to three sub-topics: the origins, functions and effects of ICs. To answer these questions, PluriCourts focused on five sectors of international law: human rights, trade, criminal law, investment, and environment.

- We are proud of our accomplishments thus far – 141 journal articles and book chapters, 11 books and many forthcoming this year and next, and an average of 50 seminars and conferences per year, say Andreas Føllesdal and Geir Ulfstein, Co-Directors of PluriCourts. Furthermore, we have been able to create a vibrant, curious and supportive research environment, attracting and keeping great colleagues.

They continue:

- We have addressed many central aspects of the various international courts in different issue areas, and move forward on that basis to compare them in more detail, and start to draw lessons. Also, the increasingly vocal challenges to these international court and tribunals make our research ever more relevant to public discussions.

  • During the past years, we witnessed an increasing polarization and tensions affecting international courts.
  • We now observe that African states are speaking of leaving the International Criminal Court.
  • The UK Brexit from the EU includes leaving the Court of Justice of the European Union.
  • Several countries discuss exit from the European Court of Human Rights.
  • Controversies arise around the inclusion of investment arbitration in Free Trade Agreements

PluriCourts revises and refines its research strategy in light of recent charges of illegitimacy. We will continue to explore the concepts and standards of legitimacy that should be applied to international courts, expanding our focus to include a broader range of ICs - the International Court of Justice, the International Tribunal for the Law of the Sea and the Court of Justice of the European Union) and exploring points of comparisons between ICs. Keeping our multidisciplinary strength, PluriCourts will look at the most important points of criticism directed against ICs. Is the criticism sound in light of the most relevant legitimacy standards? What are the potential improvements for each IC? What are the present and future roles of ICs?

The PluriCourts Co-Directors Andreas Føllesdal and Geir Ulfstein are clear that PluriCourts has a large potential to contribute to current debates:

- Amongst other, we can contribute research based information and arguments to help remove misunderstandings about facts or norms, and otherwise help ensure that the public discussions are as sound as possible.

Who is best placed to decide: States or ICs? Should states take back power?

Many argue that ICs infringe on national sovereignty by assuming powers that states did not intend the ICs to have. Critics urge states to take back authority that has been placed at a regional or international level. PluriCourts examines such accusations and suggestions. Sometimes ICs may just be scapegoats in more complex debates, and sometimes critics may be correct – sometimes ICs may well fail to serve a good purpose in the most effective ways. Where and how should decision-making power be placed at the national level, and when with ICs? PluriCourts conducts a series of workshops on several of these topics, and in different regions of the world.

PluriCourts also examines the allocation of authority between different international organs and legal regimes. Read more about national parliaments' role in the international human rights system.

Rule of lawyers or rule of law

PluriCourts is interested in the somewhat conflicting criticisms that some international courts and individual judges are puppets of their masters, while other ICs, to the contrary, are out of control.

- One of our strategies is to try to discern which criticisms are merely loud objections by those who find a judgement that goes against them, and which criticisms merit more reflection, and possibly revision of how the courts operate.

PluriCourts studies where we should strike the the balance between two necessary features of international courts’ legitimacy: independence, and accountability.

The research team assesses the composition of international courts. PluriCourts dedicates a series of research seminars and book projects to the selection procedures and composition of ICs. Amongst others important themes, PluriCourts looks at why there are so few women judges – and which effect this gender imbalance has had.

PluriCourts research has revealed that how ICs act are important for their legitimacy – be it their procedures, their methods of interpretation, and their internal workings.

ICs’ performance: From remedying individual treaty violations to global justice

PluriCourts assesses how well ICs actually perform in a wide sense. We look at whether states actually comply with judgments directed against them. More generally, PluriCourts studies whether ICs really contribute to the objectives of the treaties they protect, such as reducing human rights violations, or stabilizing global trade. On an even broader level, it asks whether ICs do – and should – contribute to global justice.

PluriCourts also examines whether, when and how judges behave strategically when they decide cases – do they follow their own preferences, those of their states, or do they bear in mind which effects their judgments can have on state compliance and the functioning of the international system?

Comparative advantages

ICs are not the only institutions that attempt to conduct fact-finding, develop or enforce the law. PluriCourts compares ICs to other forms of international dispute resolution, such as diplomacy and non-compliance procedures. The centre assesses which mechanisms are best placed to perform certain functions.

PluriCourts addresses the advantages and weaknesses of ICs for multi-party disputes. Amongst others, we ask whether ICs ensure global justice and the protection of the global public goods such as the environment.

Best practices

PluriCourts scrutinizes how changes in ICs - for better or worse – come about, and what are best practices and models for improvements for each IC. Føllesdal and Ulfstein consider that the centre’s output might have an impact on how the future international judiciary will be shaped:

- We foresee that our peer reviewed scholarly works will facilitate the longer term criticisms and developments among the politicians, judges and populations of tomorrow.

Published Nov. 2, 2017 11:14 AM - Last modified Nov. 2, 2017 11:14 AM