International Courts and Judges: Independence, Interaction, and Legitimacy

Abstract

The increased international judicialization means that the international order is progressively subject to the rule of law. Moreover, the fact that several ICs are open to non-state actors contributes to a growing transnational judiciary. In this article I first discuss the relationship between state control and independence of ICs: Should they be considered agents or trustees? While the image of trustees may give some indication about the form and extent of ICs’ freedom, I argue that it is better to address the factual as well as the legal independence of ICs directly without the intervening concepts of agents and trustees. I further argue that although the multiple number of ICs may create jurisdictional and jurisprudential difficulties and hence have the potential to undermine the general rule of law, it seems so far that they promote legal order rather than anarchy. Finally, I claim that, in the absence of strong international enforcement powers, the effectiveness of ICs in fulfilling their many functions is, to a great extent, a result of their perceived legitimacy.

Keywords: international courts, judicialization, fragmentation, constitutionalization, legitimacy, effectiveness