Toward a Theory of Legitimacy for International Courts
PluriCourts Seminar with Andreas Føllesdal.
States are free, yet everywhere live under international courts. International courts and tribunals (‘ICs’) have grown in numbers, functions and influence. Their increased impact has wrought a remarkable range of legitimacy criticisms, often contradictory, by states and other affected parties.
Several such complaints are perhaps little more than losers’ frustration. But many of the manifold criticisms merit attention, both as academic and political challenges.
Two puzzles for political and legal theory concern whether such legitimacy criticisms is a category mistake, and if not: what unites the bewildering range of concerns.
The legitimate authority of ICs concerns why and when their judgments, recommendations and interpretations should count as defeasible reasons for other actors deciding what to do. These reasons are somewhat content independent, and exclude some other reasons for action: ICs’ judgements give agents reasons to act which may rule out agents’ other reasons –be they self interest or the agent’s own considerations of justice and fairness. Whence such authority of ICs?
The present account attempts to sketch a systematic framework to understand and assess the legitimacy of ICs, inspired by Raz’ service conception of authority, David Easton's 'systems analysis,’ and Buchanan’s ‘meta-coordination’ theory.
Claims that an IC is legitimate in this sense are claims that it provide a service to the states and other compliance constituencies – be they private individuals, investors or NGOs. This general framework helps us structure and start to assess the different and apparently conflicting legitimacy criticisms against ICs.