A distinctive feature of modern international society is the increase in the number of international judicial bodies and dispute settlement and implementation control bodies; in their caseloads; and in the range and importance of the issues that they are called upon to address. These factors reflect a new stage in the delivery of international justice. The International Courts and Tribunals series has been established to encourage the publication of independent and scholarly works which address, in critical and analytical fashion, the legal and policy aspects of the functioning of international courts and tribunals, including their institutional, substantive, and procedural aspects.
International Court Authority
Edited by KAREN J. ALTER
Northwestern University and iCourts: Center of Excellence for International Courts, University of Copenhagen
LAURENCE R. HELFER
Duke University and iCourts: Center of Excellence for International Courts, University of Copenhagen
MIKAEL RASK MADSEN
iCourts: Center of Excellence for International Courts, University of Copenhagen
Great Clarendon Street, Oxford, OX2 6DP, United Kingdom
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Preface and Acknowledgements
International Court Authority reflects the aspirations and achievements of iCourts: The Danish National Research Foundation’s Centre of Excellence for International Courts. Established in 2012, iCourts is a hub for research on international courts and their impact on law, politics, and society. The center’s goal is to build theory and foster collaboration through empirical comparisons of the real-world workings and influence of international courts (ICs). An additional priority is to study established and nascent ICs, as well as those operating in different, often understudied, parts of the world.
Our project on IC authority is the product of a series of workshops at which an interdisciplinary group of experts came together to discuss how contextual factors affect the operation and influence of different international courts. The workshops included scholars working at the intersection of law, political science, and sociology, each of whom had deep empirical knowledge of at least one global IC or regional court in Europe, Africa, or Latin America. We also sought out new voices, mixing junior academics with more established scholars.
For the first workshop, held at iCourts in September 2013, participants prepared short, reflective, free-form memos that mostly drew on each scholar’s “backpack of knowledge.”1 The workshop engendered far-reaching conversations among international relations theorists, scholars who embrace third-world approaches to international law, and academics who employ diverse approaches to studying law in action. The dialogue challenged presumptions that arose from each scholar’s predominant focus on individual ICs operating in specific geopolitical and regional contexts.
The first workshop generated a first-cut list of different contexts that plausibly affect the activity and influence of different ICs. The workshop also yielded a request for a common theoretical object that all participants could engage with and compare across issue areas, cases, or time. As a group, we agreed that IC “authority” would be our focus point, that we would set aside issues of IC legitimacy, and that we would concentrate on the practices of different actors that engage with ICs rather than investigate those actors’ beliefs about IC authority. We did not, however, attempt to operationalize what IC authority might entail beyond these collective decisions.
The three editors then got to work, reviewing the relevant literatures and generating a new approach that would allow the contributors to investigate how context shapes IC authority. Our second workshop, held in May 2014 at Duke University Law School, discussed an early draft of an introduction to the authority framework and papers that applied the framework to different courts. The second workshop generated several insights: that IC authority does not operate on a continuum but rather in response to relationships with various audiences; that these relationships can develop independently of each other; that IC authority can both grow and diminish over time; and that the
1 Claire Dickerson coined this term. At the time of the first workshop at iCourts, Claire, who was fighting pancreatic cancer, was unable to travel outside of the US. She nevertheless insisted on writing a memo and engaging with the other papers. Claire’s memo drew on a very big “backpack of knowledge” about a little-known court created by the Organization for the Harmonization of Business Law in Africa (OHADA) and operating in Francophone Africa. Notwithstanding her illness, Claire remained committed to the project. She attended the second workshop at Duke Law School, published an article in the special issue of Law and Contemporary Problems, and revised the article for posthumous publication as a chapter in this book. Claire passed away on September 2, 2015. Her wisdom, insights, and contributions leave an indelible mark on all of us.
concept of authority provides only limited insight into the relative power of different ICs. The second workshop served as the basis for a special issue of the journal Law and Contemporary Problems, published in January 2016.
Although the special issue provides a solid foundation for exploring IC authority, much was left undone. In particular, we had not put our framework in conversation with other approaches to studying IC authority; we had not attempted to draw overarching conclusions from the empirical studies of different courts; and we did not include increasingly active ICs in Latin America and Africa.
The third and final workshop, held in September 2015 at Northwestern University’s Buffett Institute for Global Studies, broadened our circle of participants. We invited Tendayi Achiume and Solomon Ebobrah, scholars with expertise in African courts and third-world approaches to international law, to write papers on the SADC Tribunal and ECOWAS Court, respectively. Karen and Larry also presented a paper on the Andean Tribunal of Justice (ATJ), which extended their earlier research to focus on the ATJ’s “crisis period” between 2006 and 2015.
We also brought in six commentators whose work engages issues related to institutional authority at the national level or to authority beyond the nation state. The commentators draw from the disciplines of legal theory, philosophy, anthropology, and international relations theory, and they tend to approach the topic of IC authority from a different and less empirically focused perspective. It was a challenging group of interlocutors, especially because these scholars had not been part of the project’s earlier decision to separate the study of legitimacy and authority, to put aside normative issues, and to focus on practices rather than the beliefs of actors.
This has been a highly productive and engaging collaboration. Not one of the participants dropped out of the project; everyone conducted new research; and all of us seriously rethought our prior assumptions in response to feedback from a truly excellent group of scholars. It is not an exaggeration to say that this collaboration forced each of us to consider new approaches to topics we thought we already knew well. And, just as wonderfully, we expanded our circle of friends.
We extend heartfelt thanks to the academic institutions and collaborators that helped us to realize the aspirations of iCourts and this book. The Danish National Research Foundation, Duke’s Center for International and Comparative Law, and Northwestern University’s Buffett Institute for Global Studies provided crucial financial and administrative support. We also are grateful to our research and administrative assistants, without whom we could not have assembled our delightful and delicious meetings or produced our publications. Our thanks are in particular due to Maria Rezende Borges, Andrew Day, Daniel Echeverri, Alison Prince, Fabian Rabet-Levetzeu, Lilli Streymnes, Henrik Stampe Lund, and Ali Tripp. We are also indebted to John Louth, Merel Alstein, and Natasha Flemming at OUP, and to Nancy Rebecca at Newgen. Finally, this book would not have been possible without the love and support of our respective families, who let us trot the globe to study ICs in far-flung regions of the world.
Karen J. Alter, Evanston, IL
Laurence R. Helfer, Durham, NC Mikael Rask Madsen, Copenhagen April 30, 2018
Contents
List of Tables and Figures xi
List of Abbreviations xiii
List of Contributors xv
I. THE VARIED AUTHORITY OF INTERNATIONAL COURTS
1. International Court Authority in a Complex World 3
Karen J. Alter, Laurence R. Helfer, and Mikael Rask Madsen
2. How Context Shapes the Authority of International Courts 24 Karen J. Alter, Laurence R. Helfer, and Mikael Rask Madsen
II. INTERNATIONAL COURTS IN THEIR SOCIAL AND POLITICAL CONTEXT
Africa
3. The East African Court of Justice: Human Rights and Business Actors Compared 59
James Thuo Gathii
4. The ECOWAS Community Court of Justice: A Dual Mandate with Skewed Authority 82 Solomon T. Ebobrah
5. The OHADA Common Court of Justice and Arbitration: Its Authority in the Formal and Informal Economy 103 Claire Moore Dickerson
6. The SADC Tribunal: Sociopolitical Dissonance and the Authority of International Courts 124 E. Tendayi Achiume
Latin America and the Caribbean
7. The Caribbean Court of Justice: A Regional Integration and Postcolonial Court 149
Salvatore Caserta and Mikael Rask Madsen
8. The Andean Tribunal of Justice: From Washington Consensus to Regional Crisis 173 Karen J. Alter and Laurence R. Helfer
9. The Inter-American Court of Human Rights: How Constitutional Lawyers Shape Court Authority 196 Alexandra Huneeus
Europe
10. The Court of Justice of the European Union: Changing Authority in the Twenty-First Century 223 R. Daniel Kelemen
11. The European Court of Human Rights: From the Cold War to the Brighton Declaration and Backlash 243 Mikael Rask Madsen Courts with a Global Reach
12. The International Court of Justice and Islamic Law States: Territory and Diplomatic Immunity 277 Emilia Justyna Powell
13. The World Trade Organization’s Dispute Settlement Body: Its Extensive but Fragile Authority 300 Gregory Shaffer, Manfred Elsig, and Sergio Puig
14. The International Criminal Court: The Paradox of its Authority 331 Leslie Vinjamuri
15. International Criminal Tribunals: Prosecutorial Strategies in Atypical Political Environments 342 Ron Levi, John Hagan, and Sara Dezalay
III. INTERNATIONAL COURT AUTHORITY IN QUESTION
16. International Court Authority in Question: Introduction to Part III 365 Karen J. Alter, Laurence R. Helfer, and Mikael Rask Madsen
17. Authority of International Courts: Scope, Power, and Legitimacy 374 Andrei Marmor
18. International Courts: Command v. Reflexive Authority 382 Michael Zürn
19. International Courts’ De Facto Authority and its Justification 391 Ingo Venzke
20. Jurisdiction, Politics, and Truth-Making: International Courts and the Formation of Translocal Legal Cultures 403 Jessica Greenberg
21. Power or Authority; Actions or Beliefs 412 Andreas Føllesdal
22. Authority and International Courts: A Comment on “Content-Independent” Social Science 422 Ian Hurd
IV. GROWING AND DIMINISHING IC AUTHORITY
23. Conclusion: Context, Authority, Power
435 Karen J. Alter, Laurence R. Helfer, and Mikael Rask Madsen
Index
List of Tables and Figures
Tables
Table 2.1 Comparisons of IC Authority in Fact across Contexts
Table 2.2 Conjectures about Contextual Factors and IC Authority
Table 2.3 Contextual Factors Explored in the Empirical Chapters 53
Table 11.1 Distribution of ECtHR Cases per Country
Table 13.1 GATT Cases per Decade
Table 13.2 Participants and Third Participants in Panels and Appeals (1995–2017)
Figures
Fig. 2.1 Three Types of Authority in Fact
Fig. 2.2 The Relationship of IC Authority to IC Power
Fig. 11.1 ECtHR Judgments Delivered (1960–1989)
Fig. 11.2 ECtHR Cases by Country (1975–1989)
Fig. 11.3 ECtHR Judgments Delivered (1990–2014)
Fig. 11.4 ECtHR Judgments Delivered per Year (1999–2014)
Fig. 11.5 Number of Cases Pending before Committee of Ministers
Fig. 12.1 Map of Islamic Law States
Fig. 12.2 Muslim Population (Raw Numbers and Percentages) in ILS and Non-ILS
Fig. 12.3 ILS and Non-ILS Attempts at Peaceful Resolution of Territorial Disputes (1945–2006)
Fig. 13.1 Participants and Third Participants in WTO Panels and Appeals (1995–2017)
Fig. 13.2 Average Size of GATT/WTO Delegations
Fig. 13.3 WTO/GATT-Related Articles in Westlaw Database
Fig. 13.4 Participation in the WTO Public Forum
Fig. 23.1 Growing IC De Facto Authority
Fig. 23.2 Diminishing IC De Facto Authority
List of Abbreviations
AB Appellate Body
ACtHR African Court of Human and Peoples’ Rights
ACWL Advisory Center on WTO Law
ALBA Alianza Bolivariana para los Pueblos de Nuestra América
ANC African National Congress
ANCYL African National Congress Youth League
ATJ Andean Tribunal of Justice
BRIC Brazil, Russia, India, and China
BVerfG Bundesverfassungsgericht
CARICOM Caribbean Community
CARIFTA Caribbean Free Trade Association
CCC Constitutional Court of Columbia
CCJ Caribbean Court of Justice
CCJA Common Court of Justice and Arbitration
CEJIL Center for Justice and International Law
CET Common External Tariff
CJEU Court of Justice of the European Union
CoE Council of Europe
COMEX Committee on Commerce
DSB Dispute Settlement Body
DSU Dispute Settlement Understanding
EABC East African Business Council
EAC East African Community
EACJ East African Court of Justice
EALS East African Law Society
EC European Community
ECCJ ECOWAS Community Court of Justice
ECHR European Convention on Human Rights
ECJ European Court of Justice
ECOWAS Economic Community of West African States
ECtHR European Court of Human Rights
EFF Economic Freedom Fighters
EU European Union
FTLRP Fast Track Land Reform Program
GA General Assembly
GATT General Agreement on Tariffs and Trade
GCC Gulf Cooperation Council
GCL General Commercial Code
IACtHR Inter-American Court of Human Rights
IAS Inter-American System
ICC International Criminal Court
ICERD International Convention on the Elimination of Racial Discrimination
ICJ International Court of Justice
IC international court
ICTY International Criminal Tribunal for the former Yugoslavia
IIDC Instituto Iberoamericano de Derecho Constitucional
IIJ Instituto de Investigaciones Jurídicas
ILS Islamic law states
List of Abbreviations
IMT International Military Tribunal
INDECOPI National Institute for the Defense of Competition and the Protection of Intellectual Property
IO international organization
IP intellectual property
IR international relations
ITLOS International Tribunal for the Law of the Sea
JCPC Judicial Committee of the Privy Council
LGBTI lesbian, gay, bisexual, trans-gender and intersex
LRA Lord’s Resistance Army
MERCOSUR Southern Common Market
NAFTA North American Free Trade Area
NATO North Atlantic Treaty Organization
NGO nongovernmental organization
NMC National Monitoring Committee
NTB nontariff barrier
OAS Organization of American States
OECD Organisation for Economic Co-operation and Development
OHADA Organization for the Harmonization of Business Law in Africa
OIC Organisation of the Islamic Conference
OMT Outright Monetary Transactions
OSS Office of Strategic Services
PA Palestinian Authority
PAEA politically assigned epistemic authority
RTC Revised Treaty of Chaguaramas
SADC Southern African Development Community
SATAWU South African Transport and Allied Workers Union
SIC Superintendent of Industry and Commerce
SME small and medium-size enterprise
TEU Treaty on the European Union
TMEA Trademark East Africa
TPP Trans-Pacific Partnership
TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights
UA Uniform Acts
UN United Nations
UNAM Universidad Nacional de México
UNASUR Union of South American Nations
UNSC United Nations Security Council
UWI University of the West Indies
WIPO World Intellectual Property Organization
WTO World Trade Organization
List of Contributors
E. Tendayi Achiume is Assistant Professor of Law at the University of California, Los Angeles School of Law, and a research associate of the African Centre for Migration and Society at the University of Witwatersrand in South Africa. In 2016, she cochaired the Annual Meeting of the American Society of International Law. She earned a JD from the Yale Law School, and served as a judicial clerk for Deputy Chief Justice Dikgang Moseneke and Justice Yvonne Mokgoro of the Constitutional Court of South Africa. Her publications include Governing Xenophobia, Vanderbilt Journal of Transnational Law (forthcoming 2018); “Syria, Cost-Sharing and the Responsibility to Protect Refugees,” 100 Minnesota Law Review 687 (2015); and “Beyond Prejudice: Structural Xenophobic Discrimination Against Refugees,” 45 Georgetown Journal of International Law 323 (2014).
Karen J. Alter is Professor of Political Science and Law at Northwestern University, Permanent Visiting Professor at iCourts: Centre of Excellence for International Courts, University of Copenhagen Faculty of Law, and a codirector of the Research Group on Global Capitalism and Law at the Buffett Institute at Northwestern University. She is author of Transplanting International Courts: Law and Politics of the Andean Tribunal of Justice (2017, with Laurence R. Helfer); The New Terrain of International Law: Courts, Politics, Rights (2014, Winner of the ASIL’s Certificate of Merit and the ISA’s International Law Section Best Book Award); The European Court’s Political Power (2009); and Establishing the Supremacy of European Law (2001); and over 50 articles and book chapters. A Guggenheim Fellow and winner of the Berlin Prize from the American Academy of Berlin, Professor Alter’s research has also been supported by the Howard Foundation, the German Marshall Fund, the DAAD, and the Bourse Chateaubriand Scientifique.
Salvatore Caserta is a Postdoctoral Research Fellow, iCourts Centre of Excellence for International Courts, University of Copenhagen, Faculty of Law (PhD University of Copenhagen Faculty of Law, LLM Berkeley Law School). Caserta’s research focuses on the sociopolitical dynamics contributing to the establishment, political significance, and authority of international courts in regional settings. Caserta’s publications have appeared in the Leiden Journal of International Law, Duke Journal of Comparative and International Law, Human Rights Law Review, American Journal of International Law, and Law and Contemporary Problems
Sara Dezalay is a Lecturer in International Law and International Relations at the Cardiff School of Law and Politics, Cardiff University, and a Senior Researcher at Global Justice Lab, Munk School of Global Affairs, University of Toronto. Her research traces law’s contribution to the transformation of the international economic and political order, and particularly Africa’s unequal and uneven connection to the world. Dezalay’s previous work examines transnational judicial responses to political, economic, and human rights disputes; the relationship between law and diplomacy in global governance; and the roles played by lawyers in the transformation of the state and the position of Africa in globalization.
Claire Moore Dickerson was the Senator John B. Breaux Chair of Business Law Emerita at Tulane University School of Law. A distinguished scholar of business and comparative law, and Permanent Visiting Professor at the University of Buea in Cameroon, Dickerson was one of the world’s leading authorities on the development of business law in Africa. The author of three books and more than three dozen articles and chapters, Dickerson addressed topics in corporate governance, commercial law, international trade and business transactions, and human rights, often from a comparative perspective. She was one of just eighty elected titular members of the International Academy of Comparative Law, and she was awarded the Médaille d’Honneur by the Centre Français du Commerce Extérieur of the Republic of
France. This chapter, written in 2014, was prepared for publication in this book before her untimely yet anticipated death.
Solomon T. Ebobrah is Dean of Faculty at the Niger Delta University, Faculty of Law. Dr. Ebobrah received his doctorate in International Human Rights Law in 2009 from the University of Pretoria. Previous positions include a Post-Doctoral Fellow at iCourts: Centre of Excellence for International Courts, University of Copenhagen Faculty of Law. Ebobrah is the author of numerous articles on human rights in Africa.
Manfred Elsig is Associate Professor of International Relations and Deputy Managing Director of the World Trade Institute of the University of Bern. His research focuses primarily on the politics of international trade, regional trade agreements, European trade policy, international organizations, US–EU relations, and private actors in global politics. Previous publications have appeared in International Studies Quarterly, European Journal of International Relations, European Union Politics, Journal of European Public Policy, Journal of Common Market Studies, Review of International Organizations, Review of International Political Economy, and World Trade Review. Elsig has been Visiting Lecturer/Visiting Professor at the University of Zurich, the University of Geneva, the Graduate Institute of International and Development Studies, the London School of Economics and Political Science, and the Thunderbird School of Global Management.
Andreas Føllesdal is Professor of Political Philosophy, Faculty of Law, University of Oslo. He is Co-Director of PluriCourts, a Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order. In 1991 he gained a PhD in Philosophy from Harvard University. Føllesdal publishes in the field of political philosophy, mainly on issues of international political theory, globalization/Europeanization, human rights, and socially responsible investing.
James Thuo Gathii is the Wing-Tat Lee Chair in International Law and Professor of Law. Gathii’s research and expertise is in the areas of public international law, international economic law, including law and development, and international trade law, as well as issues of good governance and legal reform as they relate to the Third World and sub-Saharan Africa in particular. He has published over fifty articles and book chapters on international economic and trade law as well as on public international law and on good governance in Africa. Gathii is author of The Contested Empowerment of Kenya’s Judiciary, 2010–2015 (2016); African Regional Trade Agreements as Legal Regimes (2011); War, Commerce and International Law (2010), and over eighty articles and book chapters.
Jessica Greenberg is Associate Professor of Anthropology at the University of Illinois, UrbanaChampaign. Her research focuses on the anthropology of democracy, revolution, postsocialism, and youth activism in the Balkans. Greenberg is the author of After the Revolution: Youth, Democracy, and the Politics of Disappointment in Serbia (2014). Her new research focuses on international human rights law and legal cultures in the context of European integration. Previously, Greenberg was an Academy Scholar at the Harvard Academy for International and Area Studies, and an Assistant Professor in Communication Studies at Northwestern University. She earned her PhD in Anthropology from the University of Chicago in 2007. She recently earned a Master of Studies in Law at the College of Law, University of Illinois.
John Hagan is the John D. MacArthur Professor of Sociology and Law at Northwestern University and Senior Research Fellow at the American Bar Foundation in Chicago. Hagan is an expert on criminal law in its context. He is author of numerous books and articles, including Justice in the Balkans: Prosecuting War Crimes at The Hague Tribunal (2003); “Death in Darfur” in Science ; “Racial Targeting of Sexual Violence in Darfur” in the American Journal of Public Health ; and of “The Collective Dynamics of Racial Dehumanization and Genocidal Victimization” in the American Sociological Review. His paper with Gabrielle Ferrales and
Guillermina Jasso on “How Law Rules: Torture, Terror and the Normative Judgments of Iraqi Judges” received the 2009 Best Article Prize from the Law & Society Association.
Laurence R. Helfer, the Harry R. Chadwick, Sr. Professor of Law, Duke University is an expert in international law whose scholarly interests include interdisciplinary analysis of international law and institutions, human rights, international litigation and dispute settlement, and international intellectual property law and policy. Helfer has authored more than seventy publications and has lectured widely on his diverse research interests. His coauthored books include The Law and Politics of the Andean Tribunal of Justice (2017); The World Blind Union Guide to the Marrakesh Treaty (2017); Human Rights and Intellectual Property: Mapping the Global Interface (2011); and Human Rights (2nd ed., 2009).
Alexandra Huneeus is Associate Professor of Law at the University of Wisconsin Madison School of Law, where she also serves as Director of the Global Legal Studies Center and Chair of the Human Rights Program. Her work stands at the intersection of law, political science, and sociology and has been published in the American Journal of International Law, Law and Social Inquiry, Yale Journal of International Law, Cornell International Law Journal, Harvard International Law Journal, and Leiden Journal of International Law, among others. She is the editor (with Javier Couso and Rachel Sieder), of Cultures of Legality: Judicialization and Political Activism in Latin America (2010).
Ian Hurd is Associate Professor of Political Science at Northwestern University with interests at the intersection of international law, international politics, and international institutions. His latest book, How to Do Things with International Law (2017), follows the idea of the international rule of law in contemporary politics. Hurd is author of After Anarchy: Legitimacy and Power in the UN Security Council (2007), which won the Myres McDougal Prize of the Policy Sciences Society and the Chadwick Alger Prize of the International Studies Association, and International Organizations: Politics, Law, Practice (2013). He is coeditor of the Oxford Handbook of International Organizations (2015) and leads the Politics of International Law working group at Northwestern University. Hurd has been chair of the International Organization section of the International Studies Association and a visiting scholar at the American Bar Foundation in Chicago, the Woodrow Wilson School at Princeton University, EHESS in Paris, WZB-Berlin, and Sciences Po in Paris.
R. Daniel Kelemen is Professor of Political Science and Law and Jean Monnet Chair in European Union Politics at Rutgers University. Kelemen’s current research interests include the politics of the European Union, law and politics, comparative political economy, and comparative public policy. Kelemen’s 2011 book, Eurolegalism: The Transformation of Law and Regulation in the European Union, won the Best Book Award from the European Union Studies Association. He is author or editor of five other books including The Oxford Handbook of Law and Politics, and author of over 100 articles and book chapters. Prior to Rutgers, Kelemen was Fellow in Politics, Lincoln College, University of Oxford. He has been a Member of the Institute for Advanced Study at Princeton, visiting fellow in the Program in Law and Public Affairs (LAPA) at Princeton University, and a Fulbright Fellow at the Centre for European Policy Studies in Brussels.
Ron Levi is the George Ignatieff Chair of Peace and Conflict Studies, and Associate Professor at the Munk School of Global Affairs and the Department of Sociology at the University of Toronto. He is also cross-appointed in Law, Political Science, and Criminology & Sociolegal Studies. His research focuses on the internationalization of law, and on the social and political dimensions of responses to crime and atrocities. Levi launched and directs the Global Justice Lab in the Munk School of Global Affairs, focusing on justice systems under stress and strain. His work has been published in, among others, British Journal of Criminology, Law & Contemporary Problems, Journal of International Law & Politics, Law & Social Inquiry, Social
Forces, and Actes de la recherche en sciences sociales. Levi is also Permanent Visiting Professor at the iCourts: University of Copenhagen’s Centre of Excellence for International Courts.
Mikael Rask Madsen is the EURECO Professor of European Law and Integration and Director of iCourts: Center of Excellence for International Courts at the University of Copenhagen Faculty of Law. Madsen’s research is focused on international courts and the globalization of legal practices and practitioners. Madsen is author of some sixty articles and book chapters, as well as La Genese de l’Europe des droits de l’homme: Enjeux juriridiques et strategies d’État (2010); and coeditor of The European Court of Human Rights between Law and Politics (2011/13); Making Human Rights Intelligible: Towards a Sociology of Human Rights (2013); and Transnational Power Elites: The New Professionals of Governance, Law and Security (2013).
Andrei Marmor is the Jacob Gould Schurman Professor of Philosophy and Law at Cornell University. Prior to joining Cornell in 2015, Marmor was Professor of Philosophy and the Maurice Jones Jr. Professor of Law at the University of Southern California. His research interests span philosophy of law; moral, social, and political philosophy; and philosophy of language. Marmor has published dozens of articles, six book monographs, and a number of edited volumes. His most recent books include Social Conventions: From Language to Law (2009); Philosophy of Law (2011); and The Language of Law (2014). His books and articles also appeared in numerous translations, including in Chinese, Spanish, Portuguese, Hebrew, and Italian.
Emilia Justyna Powell is Associate Professor of Political Science at the University of Notre Dame, with a concurrent appointment at the Notre Dame Law School. Professor Powell specializes in international law, international courts, and the Islamic legal tradition. She is author of Domestic Law Goes Global: Legal Traditions and International Courts (with Sara McLaughlin Mitchell, 2011). Her published work appears in International Organization, Journal of Politics, International Studies Quarterly, Journal of Peace Research, Journal of Conflict Resolution, Law and Contemporary Problems, etc. Her current book project, Islamic Law States and International Law: Peaceful Settlement of Disputes, provides a comprehensive examination of differences and similarities between Islamic law and classical international law, especially in the context of dispute settlement. Powell has been a fellow at the Oxford Centre for Islamic Studies, and iCourts: Centre for International Courts, University of Copenhagen Faculty of Law. Born in Toruń, Poland, Professor Powell received her legal education in the University of Nicholas Copernicus (Poland), Jean Monnet Centre for European Studies, and the University of Cambridge.
Sergio Puig is Associate Professor of Law at University of Arizona. Puig’s academic interests include international economic law, international arbitration, law and society, network analysis, and the law and the legal profession. Puig has taught International Investment Law and International Trade Law at Duke Law and Stanford Law School, where he was the SPILS Teaching Fellow. Puig also worked for over three years in the young professionals program for lawyers and scholars at the World Bank Group and ICSID, and has practiced in leading firms in Mexico City and Washington D.C. Puig also cofounded (with Joost Pauwelyn) tradelab.org an online community-based platform to facilitate legal assistance and services related to international trade and investment matters.
Gregory Shaffer is Chancellor’s Professor of Law, and Director, Center on Globalization, Law and Society (GLAS) at University of California, Irvine School of Law. His publications include Transnational Legal Orders (2015); Transnational Legal Ordering and State Change (2013); Dispute Settlement at the WTO: The Developing Country Experience (2010); When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (2009); Defending Interests: Public–Private Partnerships in WTO Litigation (2003); and Transatlantic Governance in the Global Economy (2001); and over 100 articles and book chapters on international
economic law, global governance, and globalization’s impact on domestic regulation. Professor Shaffer’s work is cross-disciplinary and empirical, addressing such topics as transnational legal ordering, new legal realist theory, the World Trade Organization, and comparative institutional approaches to trade–social policy conflicts.
Ingo Venzke is Associate Professor at the Department of International and European Law and Director of the Amsterdam Center for International Law (ACIL). His monographs include How Interpretation Makes International Law: On Semantic Change and Normative Twists (2012); and In Whose Name? A Public Law Theory of International Adjudication (with Armin von Bogdandy, 2014). He is editor-in-chief of the Leiden Journal of International Law (with Eric de Brabandere). Venzke’s regular teaching includes courses on international dispute settlement, international economic law, and methods of legal research. His main research interests include the theory and practice of interpretation as well as contingencies in the history of international (economic) law.
Leslie Vinjamuri is Co-Director of the Centre for the International Politics of Conflict, Rights and Justice, and a Senior Lecturer (Associate Professor) in International Relations at the School of Oriental and African Studies, University of London. She founded and cochairs the London Transitional Justice Network. Prior to joining SOAS, she was on the faculty of the School of Foreign Service at Georgetown University, and worked at the United States Agency for International Development and the Congressional Research Service. Vinjamuri is the author of several articles and a contributor to many edited volumes on the international politics of conflict, norms, and rights-related topics. Her publications have appeared in numerous journals including International Security, Ethics and International Affairs, Survival, International Journal of Transitional Justice, and Annual Review of Political Science. Her current research focus is on the politics and impact of international criminal justice and accountability, competition and change in the international humanitarian market, the role of transitional justice in democratic transitions, religion and human rights, and UN Security Council diplomacy.
Michael Zürn is Professor of International Relations at the Freie Universität Berlin, and Director of the Global Governance research unit at WZB Berlin Social Science Center. His research examines governance beyond the nation state, and the legitimacy and authority of global governance institutions. He has—among other themes—most extensively written on the emergence and functioning of inter- and supranational institutions, as well as on the normative tensions and political conflicts that these developments unfold. His books include A Theory of Global Governance: Authority, Legitimacy, and Contestation (2018); Protecting the Individual from International Authority: Human Rights in International Organizations (edited with Monika Heupel, 2017); and Historical Institutionalism and International Relations: Explaining Institutional Development in World Politics (edited with Thomas Rixen and Lora Anne Viola, 2016). Relevant articles include “From Constitutional Rule to Loosely Coupled Spheres of Liquid Authority: A Reflexive Approach” in International Theory (2017), and “The Politicization of World Politics and its Effects: Eight Propositions” in European Political Science Review (2014).
PART I THE VARIED AUTHORITY OF INTERNATIONAL COURTS
1 International Court Authority in a Complex World
Karen J. Alter, Laurence R. Helfer, and Mikael Rask Madsen
I. Introduction: Why Study International Court Authority?
There are twenty-four international courts (ICs) in operation today with formal jurisdictions covering a broad array of subjects. These ICs have issued myriad rulings regarding the conduct of states and individuals in wartime, respect for human rights, the legality of domestic trade restrictions, territorial claims in the oceans and on land, the seizure of fishing vessels, and the protection of health, safety, and the environment.1 But if these rulings are not recognized as binding and as requiring consequential changes in behavior of ICs’ audiences, the potential beneficiaries of the rulings may fail to garner more than a symbolic victory.
Our goal in this book is to explore the theoretical and practical challenges involved in transforming an IC’s formal de jure authority into de facto legal authority or authority in fact. The transition from law on the books into law in action is in no way automatic. With respect to international law, this transition raises unique and sometimes insurmountable challenges. Whereas the authority of national courts can generally be presumed, at least in states with well-functioning legal systems, the authority of ICs cannot, even though, like national courts, ICs follow common and recognizable procedures associated with the rule of law. We explain in Chapter 2 how the challenges that ICs face in establishing their authority are different than those facing domestic judges. Overall, however, this book posits that ICs generate widely divergent outcomes not because of these differences, but rather due to the widely varying legal, political, and institutional contexts in which ICs operate.
The statement that “context matters” may seem self-evident, but most of the scholarship on ICs downplays the role of context. Legal scholars tend to focus on formal legal attributes and the interpretive choices or agentic actions of judges, and political scientists mainly examine how institutional design features and political structures shape legal interpretations and outcomes. This focus is attractive because interpretation and design choices are malleable—they can be manipulated by states and by judges themselves.
Our project takes a fundamentally different tack. We examine variation in how the audiences that interact with ICs embrace or reject IC rulings. This approach recognizes that international judges can and often do everything they “should” do to ensure that their rulings possess the gravitas and formal authority that national courts enjoy. Yet even when imbued with these characteristics, the parties to the dispute, potential future litigants, and the broader set of actors that monitor and respond to the court’s
1 Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights (2014).
activities may fail to acknowledge the rulings as binding or take meaningful steps to modify their behavior in response to them. In short, most ICs possess de facto authority that is partial, variable, and highly dependent on a range of different audiences and contexts.
As Chapter 2 details, we assess variations in IC de facto authority by examining the practices of key audiences, including their public statements, conduct, and other observable behavior. In particular, we develop a five-level metric that corresponds to these practices. The first level, no authority in fact, describes an IC that is inactive despite known violations of the law, or that issues decisions that are widely ignored. The second, narrow authority, exists when only the litigants to the dispute both accept a ruling as legally binding and take consequential steps toward giving it effect. The next category, intermediate authority, exists when this conjunctive standard of recognition and meaningful action extends to potential future litigants, government officials, and national judges. The fourth level, extensive authority, exists when this standard is met by a wider field that includes both legal actors—such as bar associations, law firms, and scholars—and non-legal actors—such as civil society groups—who engage and seek to influence actions and legal understandings. A final category—popular authority exists when IC rulings are viewed as binding and trigger consequential changes in behavior among the public at large, including the major participants in policy debates (e.g., politicians, the news media, and activists).
These labels may suggest that IC de facto authority exists along a continuum from narrow to popular. In fact, the five categories correspond to different audiences, and each level is independent of the others. An IC thus may or may not gain de facto authority across the full spectrum of audiences. For example, a court may have extensive authority, in that its rulings are viewed by scholars, civil society groups, and legal practitioners as binding and as requiring changes in the behavior. But those same rulings may lack narrow authority because they are ignored by the parties to the dispute, or lack intermediate authority because, while respected by the parties, they are disregarded by similarly situated litigants and government officials. De facto authority can also vary by issue area and by country; a court can have narrow, intermediate, or extensive authority across the full range of disputes and states subject to its jurisdiction, or such authority can be confined to specific policy domains or subsets of states.
We argue in Chapter 2 that what explains these variations is not the design of IC, the identity of their judges, or their rulings, but rather a set of influential contexts. We identify three broad institutional, social, and political contexts that can hinder or aid an IC in establishing its authority: (1) institution-specific factors, (2) factors related to IC constituencies and their varied interests, and (3) global, regional, and domestic contexts. These contexts suggest that structures exogenous to a court influence the conduct of the relevant audiences.
The framework that we develop to measure de facto authority makes a number of bold conceptual claims that challenge existing scholarship on ICs. First, we separate the study of authority from the study of legitimacy. This bifurcation recognizes that a court can do everything normative theorists expect of a legitimate international judicial body and still not possess authority in fact.
Second, we argue that IC authority can be identified and assessed by studying the practices of key audiences—litigants, similarly situated potential litigants, governments, judges, and larger constituent communities (such as lawyers, scholars, NGOs). Exactly why actors follow IC rulings is an important and interesting question. But it is not a question that our framework seeks to answer. Rather, we observe practices and
investigate how contextual factors shape those practices and how they contribute to variation in IC authority across different audiences.
Third, our approach rejects a number of claims voiced in global governance debates which assume that IC authority is an all-or-nothing binary. For example, some audiences may treat a particular court as authoritative, while others, who as a formal matter are also bound by the court’s mandates, may reject that authority in whole or in part. The rejection by one audience does not per se negate an IC’s authority with other actors. In addition, IC authority is not a one-way ratchet; authority once gained may be later lost, even if the formal legal rules remain the same. Similarly, it is inaccurate to portray IC authority as either residing at the international or at the national level. In reality, authority is shared, which means that gaining international legal authority does not necessarily involve subtracting national legal authority. However, as we explain in Chapter 2, a fundamental challenge ICs face is that they must establish their authority within a congested space of competing institutions and entrenched legal understandings, and doing so may require changes to national legal understandings.2
Finally, our framework is generalizable and interdisciplinary. We invited eighteen scholars from law, political science, and sociology to apply the framework, investigating how particular contextual factors enhance or undermine whether one or more audiences treat IC rulings as authoritative. The book’s thirteen empirical chapters focus on ICs in Africa, Latin America, and Europe, as well as on courts with a global reach. They include ICs that apply international economic rules, human rights, and mass atrocities law. Each chapter compares at least two different contextual dimensions of IC authority. Some chapters engage in comparisons over time or between courts, while others assess IC authority across issue areas and countries. We also asked experts who study international law and global governance institutions to comment and critique our IC authority framework. We allude to some of the commentators’ views later in this chapter, but our principal engagement with them appears in Chapter 16, the introduction to Part III of this book.
The remainder of this chapter proceeds as follows. The next section summarizes dominant approaches to studying the authority of international institutions and courts, highlighting how our framework differs. Section III provides a roadmap to the rest of the book, summarizing the principal findings of each empirical chapter and the contributions of the commentators and previewing the book’s conclusion, which summarizes the insights gained from our study of how context shapes IC authority.
II. Understanding IC Authority: Theoretical Approaches
Authority is a much-studied area of law and social science, yet it remains a contested concept. In this section we briefly set out the canonical conceptualizations of authority that scholars have applied to investigate the authority of global governance institutions. The scholarship on authority is vast; we limit our focus to four key perspectives: (A) legal formalist approaches to authority, (B) normative approaches focusing on legitimate or ideal authority, (C) sociological legitimacy theories, and (D) compliance studies and performative approaches. We then put these approaches in conversations with our framework in (E) which focuses on how the practices of IC audiences constitute IC authority. Our goal is not to exhaustively document and discuss these
2 Nico Krisch has theorized this problem of institutional multiplicity in global governance as liquid authority. See Nico Krisch, Liquid Authority in Global Governance, 9 Int’l Theory (2017).
approaches or their applications, but rather to highlight how our own approach contrasts with these leading schools of thought.
A. Legal formalist approaches
An influential approach to studying judicial authority is found in legal formalist scholarship, which looks to formal sources of law to ascertain the authority of ICs.3 In this approach, an IC derives its authority from the act of delegation from member states. The court’s authority is therefore first and foremost legal—it derives from a legal mandate and it authorizes legal actions. Second, it is limited, in that the content and form of the delegation confers a right to rule only on specified matters.
As a measure of IC authority, this approach allows for testing the legality of IC rulings against the benchmark of their delegated competences. Within legal formalist approaches, there are opposing views regarding the importance of the original delegation decisions, including subsequent revisions of the delegation contract (e.g., originalist interpretations) as compared to the importance of judicial decision-making that may shape or even expand how acts of delegation are understood (dynamic interpretation).4 These positions echo national-level debates, but the interpretative issues are even more challenging at the international level. Unlike the democratic bargain underpinning national law, the drafting of treaties involves complex intergovernmental negotiations that often, by choice, leave certain terms vague or open-ended. Since this textual ambiguity may be strategic, and because governments may offer domestic audiences different explanations of a treaty’s meaning, ascertaining the original intent underlying international rules is often difficult or even impossible.
Our approach does not question the importance of de jure authority in defining the delegation of competences to an IC. We accept that acts of delegation create both a right to rule and a defined scope of competence. We also do not question the relevance of legal analysis for determining the de jure elements of IC authority. Our turn to de facto authority is triggered by a different observation—namely, that a court’s capacity to actually exercise authority cannot be measured by legal competences alone. Even if an IC has been vested with the formal authority to rule and actually does rule, this does not mean that its rulings induce changes in behavior. In other words, the formal elements of legal authority at the center of many legal debates might not resonate with the real-world actions of the audiences of ICs.
Since we are interested in the practical operation and impact of ICs, we need to move beyond examining the de jure authority of ICs and their rulings. While our interest in de facto authority arguably presupposes the existence of de jure authority, it is also possible that an IC can exercise de facto legal authority with respect to legal issues that were never formally delegated to the court. ICs may also never claim or exercise parts of their delineated formal mandates, for example because litigants present no cases despite the existence of clear legal violations. It is also possible for an IC to claim de facto authority yet to have this authority rejected by all relevant audiences. The gap between claimed and realized legal authority often occurs with respect to dicta. Legal formalist scholars often analyze statements in a court’s reasoning that might apply more broadly in the future. In contrast, our metric only recognizes authority claims that are acknowledged by audiences in words and in deeds.
3 Compare to the discussion of the authority of international law in Basak Çali, The Authority of International Law: Obedience, Respect, and Rebuttal (2015).
4 See, e.g., Georg Nolte, Treaties and Subsequent Practice (2013).
B. Normative approaches
Normative approaches measure authority against some ideal or ideal-type characteristics of an institution. Normative scholars presume that the compliance pull of IC rulings comes from a sense that the law or the institution applying it is legitimate. If this is true, then only judgments and courts that meet certain normative thresholds for legitimacy can possess de facto legal authority. For this reason, normative approaches suggest that an IC’s success or failure in reaching normative goals helps explain why subjects do or do not follow its rulings.
There are a number of prevalent normative approaches to evaluating legal authority. Many scholars have built on the eight criteria for legality famously developed by Lon Fuller, which according to his thesis generate an internal morality.5 Brunnée and Toope’s interactional theory, for example, applies Fuller’s criteria to international law. They accept Fuller’s argument that fulfilling these criteria contributes to legal subjects’ sense of obligation. “Fidelity is generated, and in our terminology obligation is felt, because adherence to the eight criteria of legality (a ‘practice of legality’) produces law that is legitimate in the eyes of the persons to whom it is addressed.”6 One can translate Brunnée and Toope’s claim into an empirical argument—if lawyers assess international law and IC rulings against Fuller’s (or another set of) abstract legal criteria, then a failure to meet those very criteria might explain the gap between delegated and realized legal authority. This model resembles in some ways the idea of perceived legitimacy discussed later under sociological approaches, but it presupposes a highly specific source of legitimacy.
A second normative approach focuses on the processes of making and applying the law. This approach measures the legitimation of legal rules and institutions against normative criteria such as transparency, proportionality, accessibility, accountability, and representativeness. Scholars of Global Administrative Law developed such criteria to analyze contemporary international law in a range of judicial and quasi-judicial settings.7 A related approach is found in the work of André Nollkaemper, who sees “international public goods” as being legitimated at the crossroads of substantive and procedural law.8 Armin von Bogdandy and Ingo Venzke emphasize different aspects of the lawmaking and law application process, raising the normative question of in “whose name” ICs exercise public authority.9 Interestingly, these authors point not only to procedural elements of IC legitimation, such as those mentioned above, but also to the need for public engagement, whereby courts consider the broader implications of their rulings and the groups that interact with them. This engagement may
5 According to Fuller, the eight criteria define an “inner morality” to the law. The criteria include that law must be: (1) sufficiently general; (2) publicly promulgated; (3) prospective (i.e., applicable only to future behavior, not past); (4) intelligible to those who must follow the law; (5) free of contradictions; (6) relatively constant, so that they don’t continuously change from day to day; (7) possible to obey; and (8) there must be congruence between legal norms and the actions of officials operating under the law.
6 Jutta Brunnée & Stephen J. Toope, Legitimacy and Legality in International Law: An Interactional Account 27 (2010).
7 For a discussion of the differences between global administrative law and the study of ICs, see Mikael Rask Madsen, Judicial Globalization: The Proliferation of International Courts in Research Handbook on Global Administrative Law (Sabino Cassese ed. 2016).
8 André Nollkaemper, International Adjudication of Global Public Goods: The Intersection of Substance and Procedure, 23 Eur. J. Int’ L. 769 (2012).
9 Armin Von Bogdandy & Ingo Venzke, In Whose Name?: A Public Law Theory of International Adjudication (2014).
well politicize an IC, but for von Bogdandy and Venzke engagement is necessary to legitimate public authority.10
A different type of normative approach, which is linked to the legal formalist accounts discussed earlier, considers the legitimacy of the actors that delegated power to an international institution in the first instance. The literature on international criminal law, for example, often highlights the fact that some ad hoc tribunals have been set up by the United Nations (UN). For some scholars, a UN pedigree is an implicit endorsement by world society, while for others the UN Security Council’s lack of democratic representation undermines the legitimacy and authority of these tribunals.11 Strictly speaking, these normative origins have little relevance for assessing either the de jure or de facto authority of international criminal tribunals. Thus, while we do not categorically reject the claim that an IC’s origins may influence the practices of key audiences, we do not accept that a court’s normative origins meaningfully determine its de facto authority.12
A more rational variant of the normative account of authority is found in the work of Joseph Raz, in particular his “service conception of authority”.13 Raz legitimates the exercise of authority by observing that, in some instances, obeying an authority serves individuals’ interests better than if they tried to make the decision themselves. In other words, Raz suggests that solving collective action problems legitimates authority. From this follows two important conclusions: that de facto authority is not necessarily legitimate (an institution must provide a good service to be legitimate) and that legitimacy is not the result of consent (as in the model of de jure authority) but of the service the institution renders.14
The Razian account’s rational explanation of authority differs in fundamental ways from our framework. Our objective is not to imagine—or to rationally reconstruct— what (may) make constituencies accept an institution’s authority, but rather to assess how audiences respond to the institution’s activities and outputs—in our case, the rulings of ICs. In our account, de facto authority exists when an IC induces certain behaviors; so long as IC rulings are recognized as binding and trigger actions that push toward giving effect to those rulings, those behaviors do not depend on how the court gained or exercises its right to rule in the first instance. Nor is it relevant whether constituencies arguably benefit from the service provided by the institution in a moral philosophical sense.
The normative approaches summarized above share the idea that certain qualitative characteristics of an international institution, ranging from its origins and procedures to its actions, legitimate that institution.15 This fuses the concepts of authority and
10 In Part III of this book, Ingo Venzke articulates a critique of our framework based on some of these findings. See also Patrick Capps & Henrik Palmer Olsen, Legal Authority Beyond the State (2018).
11 See, e.g., Antonio Cassese, The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice, 25 Leiden J. Int’ L. 491 (2012).
12 See the debate on this question summarized in Brandeis Institute for International Judges in Collaboration with iCourts—Centre of Excellence for International Courts, The Authority of International Courts and Tribunals: Challenges and Prospects (Leigh Swigart ed., 2017).
13 Joseph Raz, The Authority of Law: Essays on Law and Morality (2009).
14 David Dyzenhaus, Consent, Legitimacy and the Foundation of Political and Legal Authority, in Between Consenting Peoples: Political Communities and the Meaning of Consent (Jeremy Webber & Colin M. Macleod eds., 2010). Andreas Føllesdal’s commentary applies the Razian model to the authority framework. We respond to his critique in the introduction to Part III of the book.
15 There is a well-developed debate in the Global Administrative Law literature on these and related issues. See, e.g., Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, 68 Law & Contemp. Probs. 15 (2005).
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