For those international court buffs out there, you may be interested in my new article on legitimacy and international courts, recently posted on SSRN and published in volume 86 of the Temple Law Review. In essence, the article seeks 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.
The 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.
You can read the article on SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2185304.
Thanks for taking the time to read this blog post and I look forward to your comments!
Speaking of legitimacy and international courts, the University of Baltimore School of Law and the University of Oslo’s PluriCourts program are co-sponsoring a symposium on the topic in September 2014. Several Intlawgrrls bloggers are slated to participate. More details to follow!