Legitimacy Criticisms of International Courts

Legitimacy ◽  
2019 ◽  
pp. 223-238
Author(s):  
Andreas Follesdal
Keyword(s):  
International Courts ◽  
Actual Compliance ◽  
Service Conception ◽  
State Consent ◽  
Law Making

This chapter concludes the book as a whole and attempts to bring some order to debates about the legitimacy of international courts. It draws on Raz’s conception of authority and on cosmopolitan theory. It argues that this approach can reduce apparent confusion about the legitimacy of international courts by explaining the significance of considerations such as states’ consent, states’ compliance, and the legality of courts’ decisions. International courts not only adjudicate disputes, but also engage in the interpretation and specification of laws, and—some would argue—even law-making. Thus, the issue is not only the judicial legitimacy of these courts, but also their legitimate role in specifying treaties and shaping other actors’ expectations of others’ future actions more broadly. Raz’s service conception helps to explain why several legitimacy conceptions matter for normative legitimacy, including legality, the (limited) significance of state consent, and why actual compliance often matters if international courts are to provide impartial yet responsive judgments and specifications whilst accountable and responsive.

scholarly journals Give a Court an Inch and It Will Take a Yard? The Exercise of Jurisdiction over Incidental Issues

2021 ◽  
Vol 81 (1) ◽  
pp. 235-264
Author(s):  
Fabian Simon Eichberger
Keyword(s):  
Subject Matter ◽  
Dispute Settlement ◽  
Fundamental Importance ◽  
International Courts ◽  
International Court ◽  
The Subject ◽  
State Consent

This article seeks to clarify how international courts and tribunals should decide whether to exercise jurisdiction over incidental issues. It considers such issues incidental, which would fall outside the subject-matter jurisdiction of an international court or tribunal if submitted separately, but which courts rule upon to resolve disputes falling within their jurisdiction. International courts and tribunals have employed diverse approaches to decide whether to exercise jurisdiction over incidental issues. This contribution will assess their decisions to distil what criteria are best suited to ensure the effectiveness of the underlying treaty while taking into account the fundamental importance of state consent for judicial dispute settlement. It concludes that the necessity to exercise jurisdiction over the incidental issue and the nature of the issue should be the guiding criteria for international courts and tribunals, while the character of the jurisdictional basis may serve as supplementary criterion.

scholarly journals State Consent and Disagreement in International Law-Making. Dissolving the Paradox

2016 ◽  
Vol 29 (2) ◽  
pp. 289-316 ◽  
Author(s):  
SAMANTHA BESSON
Keyword(s):  
International Law ◽  
Legal Positivism ◽  
Legitimate Authority ◽  
Political Equality ◽  
Reasonable Disagreement ◽  
Democratic State ◽  
Sovereign Equality ◽  
State Consent ◽  
Law Making

AbstractThis article starts with a paradox: international law-making is ridden with reasonable disagreement and yet no state can be bound by international law without its consent and hence without agreement. Breaking away from the pragmatic resignation that prevails among international law scholars on this question, the article proposes an interpretation of the role of state consent that both fits and justifies its central role in the practice of international law-making and, hopefully, strengthens the latter's legitimacy in the future. Its proposed justification actually lies in the circumstances of reasonable disagreement among democratic states and this proposal dissolves the paradox. The article argues that, in international law as it is the case domestically, consent is neither a criterion of validity of law nor a ground for its legitimate authority. It also dispels two myths about state consent: its necessary relationship to legal positivism and state sovereignty. Instead, the article argues, the role of democratic state consent is that of an exception to the legitimate authority of international law and hence to its bindingness in a concrete case. While the legitimacy of international law is not democratic, the democratic nature of states and their democratic accountability to their people matter. This is especially the case in circumstances of widespread and persistent reasonable disagreement as they prevail among democratic states in international law-making. In these circumstances, respecting the sovereign equality of democratic states by requiring their consent is the way to grant an equal voice to their people. Of course, there are limits to the democratic state exception that are inherent to both its democratic dimension (it requires respecting basic political equality) and its consensual dimension (it requires that consent is expressed in a free, fair and informed fashion). The article concludes by showing how the proposed disagreement-attuned account of democratic state consent explains various characteristics of the main international law-making processes, i.e., treaties and custom.

International Criminal Jurisdiction

2019 ◽  
pp. 503-528
Author(s):  
Kirsten Schmalenbach
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
International Courts ◽  
Criminal Jurisdiction ◽  
National Jurisdiction ◽  
State Consent ◽  
Theoretical Foundations

This chapter examines the theoretical foundations and the genealogy of international criminal jurisdiction in international law. While it is clear that international criminal jurisdiction cuts into national jurisdiction to a certain extent, the question concerning the proper foundation of international criminal jurisdiction—whether it rests on state consent or a mandate by the international community—remains more nuanced and more debated. The chapter also explores judicial perspectives on the jurisdiction of international courts and tribunals. It argues that, where the Security Council has been involved in establishing a court or tribunal, jurisprudence supports the position that international criminal jurisdiction is exercised on behalf of the international community. In the case of the International Criminal Court (ICC), however, the picture becomes more complex, due to the role of domestic criminal jurisdiction and the difficulty in identifying a single international community.

Specialized Courts and Tribunals as the Guardians of International Law? The Nature and Function of Judicial Interpretation in Kelsen and Schmitt

2018 ◽  
Author(s):  
Jochen von Bernstorff
Keyword(s):  
International Law ◽  
World Order ◽  
Judicial Interpretation ◽  
International Courts ◽  
Specialized Courts ◽  
Current Concerns ◽  
And Function ◽  
Law Making

Jochen von Bernstorff identifies the several roles and functions of international courts and tribunals (ICs) from the perspective of Hans Kelsen’s and Carl Schmitt’s accounts of international law. Kelsen saw the international judiciary with compulsory adjudication and de facto law-making authority as the key to a future peaceful world order. This would not require a world legislator. He also held that judges had considerable freedom in their interpretation and application of international law. Schmitt agreed that courts have a central law-making function, and also that judges are subject to few interpretative constraints. But Kelsen and Schmitt were not writing with today’s sector-specific international courts in mind. Much current concerns about the legitimacy of ICs can be traced back to tensions with what could be claimed to represent a global judicial imperialism. Von Bernstorff warns against sectorial colonization in the sense that the specialized ICs take control over non-judicialized sectors.

The Development of International Law of the Sea by International Courts and Tribunals

2021 ◽  
Vol 9 (1) ◽  
pp. 132-152
Author(s):  
Hua Zhang
Keyword(s):  
International Law ◽  
Normal Function ◽  
Law Of The Sea ◽  
Due Diligence ◽  
International Courts ◽  
Marine Environmental Protection ◽  
Administration Of Justice ◽  
International Adjudication ◽  
Marine Environmental ◽  
Law Making

Abstract The development of international law of the sea by international courts and tribunals is generally acknowledged among international lawyers. In retrospect, the creative jurisprudence of international judicial bodies was incorporated into the mainstream of international law-making process in many cases, while the experience of failure cannot be ignored. In the past decade, the strengthening of marine environmental protection has become a tendency in international adjudication. Accordingly, the content and scope of due diligence obligation has been discovered, consolidated and extended. In light of the evolution of due diligence obligation, the methodology of law-making by international judicial bodies includes: inter alia, interpretation, cross-reference of precedents, analogy, and assertion. However, from the perspective of legitimacy, law-making should not become the normal function of international judicial bodies. Bearing in mind international rule of law and good administration of justice, the lawmaking activities of international courts and tribunals should be curtailed in certain degree.

Globalization and its Effect on International Courts and Tribunals

2006 ◽  
Vol 5 (1) ◽  
pp. 1-11 ◽  
Author(s):  
Angela Del Vecchio
Keyword(s):  
Subject Matter ◽  
Single Case ◽  
Geographical Area ◽  
International Community ◽  
Legal Order ◽  
International Courts ◽  
Binding Force ◽  
Territorial Jurisdiction ◽  
International Legal Order ◽  
Law Making

AbstractThere is a need for the international community to make provision for and construct a system of rules and sanctions with far greater binding force than the previous system and which draws its strength of application from the setting up of new international tribunals endowed with personal, subject matter and territorial jurisdiction. It is precisely these courts and tribunals, when ruling that individual cases fall within the scope of the general interests of the community as a whole, which are the institutions best equipped to respond to globalization. Moreover, it is increasingly recognized that courts and tribunals have law-making powers since in the current international legal order the effects of their decisions are often not limited to a single case, i.e. the decisions can be universally valid at least within the geographical area in which the court operates or the sector in respect of which it enjoys jurisdiction. In this connection, the author explores the effects of globalization on international courts and tribunals.

2. Sources of international law

2019 ◽  
pp. 31-57
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
State Institution ◽  
Legal Rule ◽  
International Court Of Justice ◽  
Legal Rules ◽  
Applicable Law ◽  
International Court ◽  
The Icj ◽  
State Consent ◽  
Law Making

This chapter discusses the sources of international law. International law’s authority is generally regarded as deriving from the consent of States. As such, it is only pursuant to State consent that international legal rules can be developed. This is not to say that all international law is made by States; States frequently delegate law-making authority to specific bodies or organs, and they may acquiesce or consent to a legal rule which originated in a non-State institution. The chapter then considers Article 38 of the Statute of the International Court of Justice. Technically, Article 38 of the ICJ Statute only lays out the categories of sources to be applied by the ICJ: its lex arbitri or applicable law. Yet, in practice, Article 38 has long been regarded as an authoritative, complete statement as to the sources of international law.

The Judicialization of International Law

2018 ◽  
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
International Relations ◽  
International Law ◽  
The Other ◽  
International Courts ◽  
General Frame ◽  
Future Potential ◽  
The One ◽  
Law Making

International relations are increasingly judicialized by the increasing number of international courts and tribunals. On the one hand this judicialization of international law is hailed as a glimmer of more effective and legitimate world governance promoting human rights, justice, and peace. On the other hand critics highlight how sovereignty is increasingly constrained by international courts, and question the effectiveness, legitimacy, and future potential of these courts and tribunals. This book maps and assesses this development and the mixed reactions thereto, presenting the aspirations which international courts and tribunals (ICs) are living up to, and where they fall short. The first Part provides a general frame for these legitimacy concerns. It discusses the general functions of ICs; how they are governed; and possible alternatives to ICs. The second Part considers how the ICs appear to present their judgments in ways that legitimize them vis-à-vis states and other stakeholders; their inner workings; as well as their law-making role. The following Parts consider the various forms of backlash several of the ICs experience, and how the ICs, states, and civil society seek to respond to these challenges. The last Part deals with the fragmentary character of the international judiciary. An epilogue looks to the future of international judicialization.

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