Abstract

http://ssrn.com/abstract=2185304
 


 



The Normative Legitimacy of International Courts


Nienke Grossman


University of Baltimore - School of Law

December 5, 2012

Temple Law Review, Vol. 86, 2013
University of Baltimore School of Law Legal Studies Research Paper No. 2014-03

Abstract:     
This Article’s objective is 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. This 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.

Number of Pages in PDF File: 47

Keywords: international courts, legitimacy, adjudication, international legal theory

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Date posted: December 6, 2012 ; Last revised: January 23, 2014

Suggested Citation

Grossman, Nienke, The Normative Legitimacy of International Courts (December 5, 2012). Temple Law Review, Vol. 86, 2013; University of Baltimore School of Law Legal Studies Research Paper No. 2014-03. Available at SSRN: http://ssrn.com/abstract=2185304 or http://dx.doi.org/10.2139/ssrn.2185304

Contact Information

Nienke Grossman (Contact Author)
University of Baltimore - School of Law ( email )
1420 N. Charles Street
Baltimore, 21218
United States
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