Reading 5: Grossman
Grossman, Nienke (2013). "The normative legitimacy of international courts." Temple Law Review 86: 61-105.
This Article’s objective is to spark discussion about the standards by which we judge international courts. Traditional justifications for the authority of international courts are based on outmoded assumptions of their role and impact. State consent and procedural fairness to litigants are insufficient to ground the legitimacy of institutions that may adjudicate the international rights and duties of nonlitigants, deeply affect the interests of nonlitigating stakeholders, and shape the law prospectively. These realities mandate a new approach to the legitimacy of international courts. This Article presents alternative or additional approaches for justifying the authority of international courts rooted in both procedure and substance. First, legitimacy requires a reimagining of procedural fairness to include those whose international rights and duties are being adjudicated by international courts. Democratic theory can help to justify the authority of international courts so long as stakeholders are given the opportunity to participate in the formulation of policies that affect them. In addition, international courts must adhere to certain universal standards of justice. They cannot facilitate the violation of a set of core norms, including prohibitions against torture, slavery, racial discrimination, and genocide, and still retain their legitimacy. Finally, the extent to which an international court implements the objectives it was created for also affects its legitimacy.
Why this reading?
This article is an interesting early contribution to the more specific issues of the legitimacy of international courts, rather than legitimacy in general or of international law.
The author argues for three related grounds for the legitimacy of international courts: (1) procedural fairness, extended beyond litigants to all stakeholders whose rights are affected by IC rulings; (2) adherence to “certain universal standards of justice,” including some human rights prohibitions against torture, slavery, racial discrimination and genocide; and (3) implementation of the objective for which the court was established.
Note: Grossman refers to Raz' argument; we discuss that later in the semester.
Questions for discussion
- With regard to claims to participation, Grossman argues that "nonlitigating stakeholders whose interests are implicated must have the opportunity to influence outcomes. This argument is grounded in democratic theory." (81) What do you make of the democratic argument laid out in the article?
- Which human rights are included, on what grounds? Would you agree? What are plausible objections to this list and the focus on 'respect' rather than e.g. 'protect' these rights?
- What are the institutional implications of 'democratizing' the international courts? Do you find the arguments persuasive?