In Whose Name? An Investigation of International Courts’ Public Authority and its Democratic Justification
European Journal of International Law, Vol. 23, No. 1. 2012
39 Pages Posted: 21 Apr 2010 Last revised: 1 Dec 2011
Date Written: April 21, 2010
In many grand theoretical sketches court judgments are epitomes of sovereign rule. How may such judicial power be justified nowadays? Many domestic courts decide in the name of the people and thus invoke the authority of the democratic sovereign literally at the very beginning of their decisions. International courts, to the contrary, do not expose in whose name they speak the law. This void sparks our driving question: how does the power of international courts relate to the principle of democracy? In other words, how can the rule of international courts be justified in accordance with basic premises of democratic theory?
This contribution’s first step recalls the progressive demand for international compulsory jurisdiction that has pervaded the currently prevalent understanding and that forms the target of our critique (II). The second step unfolds international judicial decisions’ most significant problems of justification in light of the principle of democracy. We place particular emphasis on the lawmaking dimension of international judgments (III A) and conceive them as an exercise of public authority (III B). The increasingly powerful judiciary withdraws the law from the grasp of political-legislative bodies – the most important source of democratic legitimation (III C 1). A constitutionalist reading of international law and adjudication is unconvincing and cannot justify the decoupling of law and parliamentary politics. (III C 2). We then show that processes of fragmentation are fuelled by the agency of multiple courts and argue that this constitutes a further problem in the democratic justification of international courts’ public authority (III C 3).
In a third step we turn to strategies in response to the problems. Doubts about the justification of a decision are usually met with procedural adjustments (IV A), elections traditionally respond to the exercise of public authority (IV B), and systemic interpretation as well as a dialogue between courts may bear the potential of easing concerns that spring from processes of fragmentation. Even if all strategies were spelled out in more detail and were met to full satisfaction, we retain the impression that international courts may not always be in a position to carry the whole burden of justifying their authority. Domestic constitutional organs then step in. They unburden the international level from shouldering the whole weight of justification by deciding about the effect of international decisions in the municipal legal order (V). Our critique ultimately shows that the normative vanishing point for the future development of the international judiciary should be the idea of the cosmopolitan citizen (VI).
Keywords: International Courts and Tribunals, Fragmentation, Democracy, Habermas
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