Review of Hathaway and Shapiro The Internationalists

-“More Than Meets the Eye – and Less: On the Internationalists.” Global Constitutionalism 7 (3): 330-341. These comments explore further some game theoretical themes of O Hathaway and S Shapiro The Internationalists (2017) of how outlawing of war led to profound changes in international relations even when the norm was breached. The Peace Pact arguably contributed to avoid war by creating institutions – such as international courts – that helped stabilize an assurance game among states by providing trustworthy information and commitments, in turn influencing practices and beliefs concerning mutual non-aggression.
Second, the authors at times claim that the Peace Pact was not only a cause of, but the cause of the massive shift in reduced warfare. Further arguments would be required to substantiate that this treaty not only was a necessary condition, but the trigger that ‘began a cascade’ (xv). Other factors might also have been necessary, and equally deserving of the label ‘triggers,’ – such as increased global interdependence, or democratization. The authors might best modify their claim.
Third, the authors claim not only to present a historical account, but also to draw lessons for the future. At a time when international norms and institutions are under severe pressure, such lessons are very welcome. However, there are reasons to be less optimistic than the authors about the extent of lessons we can draw from The Internationalists about how to preserve and improve on the New World Order of the Pact, rather than backsliding into the Old World Order.[D0I/LINK] [WEB]

“Power or Authority; Actions or Beliefs”

in International Court Authority. K. Alter, L. Helfer & M. R. Madsen. New York, Oxford University Press: 412-421. Institutional, political and social circumstances affect the impact of international courts (‘ICs’). The valuable and intellectually intriguing aim of the project in this volume, ‘The Variable Authority of International Courts’ is to develop and apply a metric to assess the effects of some of these contexts.
The chapter discusses two questions concerning the project. What do they seek to measure with their metric – and are the findings actually about authority? Furthermore, AHM go to great lengths to proclaim methodological agnosticism about actors’ beliefs and motives, and argue for the irrelevance of normative legitimacy for this research project. Yet the former claim seems incorrect and the second is both unnecessary and ill defended. [D0I/LINK] [SSRN] [WEB].

Appreciating the Margin of Appreciation

How should an international human rights court best pay due respect to both the treaty and to its sovereign creators? The European Court of Human Rights (ECtHR) is a prime case. It reviews whether states uphold their obligations under the European Convention on Human Rights (ECHR). The Court is also authorized to rule on whether states may violate certain of their citizens’ rights – as the Convention permits – in order to protect morals, the conflicting rights of others, national security or other considerations (e.g. Articles 8 and 15).
One mechanism that arguably serves to reduce the risk that the ECtHR will abuse its power is the margin of appreciation (MA) doctrine that the Court has developed. The Court grants states the authority to decide, in some cases, whether they are in compliance with their treaty obligations. Is the MA doctrine a sound response to this perceived dilemma between majoritarian democracy and protection of human rights? The present chapter presents and defends some form of the MA doctrine precisely as a contribution by the Court to both protect human rights and to promote domestic democracies. I also suggest reforms to render it more legitimate. in Human Rights: Moral or Political?. A. Etinson. Oxford, Oxford University Press: 269-294. [SSRN] [WEB].

The Judicialization of International Law – a Mixed Blessing?

International courts and tribunals are increasing in number and importance. They address an expanding variety of issues, ranging from the law of the sea to international criminal law. .. international relations are increasingly judicialized. The present book maps and assesses this development – and reactions thereto, because the trends have met with mixed responses… The Judicialization of International Law – a Mixed Blessing?. A. Follesdal & G. Ulfstein, eds. Oxford, Oxford University Press [D0I/LINK] [SSRN] [WEB].

A Framework for Evaluating the Performance of International Courts and Tribunals

While prior studies have tended to focus on specific questions relating either to the design or to the effects of international courts, we develop an integrated framework for the study of the performance of ICs. .. We explore factors that may explain the patterns of performance we observe. …We are interested both in the outcomes courts produce and the processes through which they arrive at judgments…. To know whether regimes or governance systems are effective, then, we argue that it is imperative to ask whether international courts perform their roles well or poorly….
in The Performance of International Courts and Tribunals. T. Squatrito, O. Young, A. Follesdal & G. Ulfstein (eds). Cambridge, Cambridge University Press: 3-35. [D0I/LINK] [WEB].

Legitimacy and International Courts – a Framework

This Introduction surveys some of the key contributions of this volume and distills some of the lessons of its varied chapters for the legitimacy of international courts. Parts II and III are largely conceptual in approach, exploring what legitimacy means for each and all of the courts. Part II explores the concept of legitimacy as it pertains to international courts, examining the relationship between source, process, and results-oriented aspects of IC legitimacy and the relationship between legitimacy, justice, democracy, and effectiveness. Part III looks more closely at the chapters in this volume and explores their contributions to the discussions above, as well as their lessons regarding the relationship between sociological and normative legitimacy.
Part IV takes a more functional approach, exploring how various factors internal or external to particular courts have contributed to those courts’ normative or sociological legitimacy. It considers international courts in their context, examining the relationship between the specific goals, design choices, audiences, institutional contexts and IC legitimacy. It explores three models of how these factors interact in this volume’s chapters to either support of undermine an international court’s sociological or normative legitimacy. Part V provides thumbnail summaries of each the chapters that follow.
— Grossman, N., H. Cohen, A. Follesdal and G. Ulfstein 2018 “Legitimacy and International Courts – a Framework “. The Legitimacy of International Courts . N. Grossman, H. Cohen, A. Follesdal & G. Ulfstein (eds). Cambridge, Cambridge University Press: 1-40.
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A challenge to Raz’ Service Conception?

“The Legitimate Authority of International Courts and Its Limits: A Challenge to Raz’ Service Conception?” in Legal Authority Beyond the State. P. Capps & H. Palmer Olsen, eds. Cambridge, Cambridge University Press: 188-205.

Very public challenges to international courts (ICs) by state governments, legislatures, domestic or international courts, corporations, investors or civil society groups are often draped in terms of ‘legitimacy’. The challenges provoke several questions. Why should such ‘compliance constituencies’ defer to ICs’ judgments at all? More precisely: when do ICs’ judgments give such constituencies reason to act differently than they would otherwise – and when do they not? The present contribution argues that states’ disobedience may be justified due to the substantive contents of the particular ruling by an IC. Section 1 provides a brief sketch of Raz’s ‘Service account’ of legitimacy, and addresses some criticisms relevant to our concerns. Section 2 brings this account to bear on ICs, and lays out some of its distinguishing features by comparing it to the influential accounts of Daniel Bodansky and Yuval Shany. Section 3 turns to consider how this account accommodates and even justifies cases of disobedience against ICs. [D0I] [SSRN] [WEB]

Constitutionalization, Not Democratization!

“Constitutionalization, Not Democratization: How to Assess the Legitimacy of International Courts”. In The Legitimacy of International Courts . N. Grossman, H. Cohen, A. Follesdal & G. Ulfstein. Cambridge, Cambridge University Press: 307-337.

Several authors – including Armin von Bogdandy and Ingo Venzke, Allan Buchanan and Robert Keohane, Gráinne De Búrca, and Nienke Grossman address the legitimacy deficits of international courts (ICs). They propose the ‘democratization’ of ICs, by which they often mean to increase their transparency, accountability or participation by various parties. There are other, better reasons to value transparency, accountability and participation concerning ICs than as building blocks of democracy, namely insofar as they contribute to valuable forms of constitutionalization of the global basic structure. Moreover, they can be valuable even when such changes do not advance democracy of the kind worth having. We should not assume that democracy is the touchstone for all legitimate modes of governance. TWe should distinguish between democratic institutions of decision-making, the normative principles that justify such institutions, and important features of such institutions that contribute to their justification, such as accountability, participation and transparency. It is only calls for the first of these – formalized institutions of decision-making – which should be considered democratication proper. [D0I/LINK] [SSRN] [WEB].