Curb, Channel and Coordinate: The Constitutionalisation of International Courts and Tribunals
This chapter by PluriCourts co-director Andreas Follesdal appears in The Contribution of International and Supranational Courts to the Rule of Law (eds. G. D. Baere and J. Wouters), Elgar Publishing 2015. Read the chapter on SSRN.
From the vantage point of normative political philosophy the preceding chapters in this volume offer several lessons and further research questions of how to assess and promote the legitimacy of these ICs. The following comments identify some of these. Several proposals amount to measures of constitutionalisation of ICs.
Section I identifies some of the hitherto understudied arenas where the authors remind us that the perceived legitimacy of the ICs matters if they are to secure their various objectives. Section II addresses one central standard of legitimacy: the content of the concept of the Rule of Law, which remains contested both as an objective of ICs, and as a requirement on their operation. Føllesdal stipulates that two central underlying values justify several if not all rule of law norms: non-domination and stable legitimate expectations. Respect for human rights is a further substantive value which many but not all contributors include in the concept.
Føllesdal then considers two main challenges to the legitimacy of ICs from rule of law standards. One is the possible fragmentation and the legal uncertainty that may ensue. Section III thus summarizes the chapters’ insights about the alleged fragmentation wrought by so many ICs. Section IV considers some further challenges to the objectives and performance of ICs by these rule of law standards. Their multiple objectives require that the judges and arbitrators enjoy a wide berth of discretion in interpretation and adjudication – which raise the risk that states and individuals become subject to domination by the ICs themselves. Individuals may end up not living under the rule of law but under the rule of international lawyers.
The following two sections gather several possible strands of responses to these fears. Section V elaborates how the power of ICs is constrained by their complex interrelationship with domestic authorities. Some such interdependence may be assessed by a further popular standard of legitimacy in addition to the rule of law, namely subsidiarity. This concept is often invoked in international law, explicitly so for the European Union and in debates concerning the European Convention on Human Rights. The section explores how several features of the authority of ICs presented by the authors may be explained and perhaps assessed by some standard of subsidiarity, to reduce the risks wrought by the ICs themselves. Appeals to subsidiarity may not so much lay issues to rest as stimulate more structured and systematic arguments concerning the legitimacy of ICs. Section VI considers several ways to regulate the discretion of the ICs to reduce the risks of fragmentation and domination, garnered from the contributions of this volume. Increased legitimacy of international courts requires perspectives and measures of constitutionalisation: Promote rule of law standards by better checks on the international courts, and channel and coordinate them better.