Understanding the Authority of International Courts and Tribunals: On Delegation and Discursive Construction

Abstract

This Article develops an understanding of authority as the ability to establish content-laden reference points that participants in legal discourse can hardly escape. Situating authority between coercion by force and persuasion through argument, it carves out recognition and constraint as constitutive elements of authority. Delegation — a conditional grant of authority from principals to agents — is typically taken to account for the authority of international courts and tribunals (ICTs). But the Article argues that delegation is at best only the starting point of ICTs’ authority. The dynamics of the legal discourse stabilize authority and account for its further growth. The conception of authority that emerges from the discussion herein is less one of a command that demands blind obedience than a reference point that redistributes argumentative burdens. Communication is authority’s medium. Taking a step back from immediate normative questions, the Article shows what it takes for ICTs to have authority. It presents the communicative dynamics that build up ICTs’ authority and showcases the discursive resources ICTs themselves use to induce deference. The Article suggests in conclusion that a better understanding of what it takes for ICTs to have authority will also advance questions about such authority’s normative legitimacy.

Keywords: international law, international courts and tribunals, authority, delegation, discursive construction, lawmaking

JEL Classification: K33