How Context Shapes the Authority of International Courts

79:1 Law & Contemporary Problems 1-36 (2016).

iCourts Working Paper Series, No. 18

Duke Law School Public Law & Legal Theory Series No. 2015-13

42 Pages Posted: 7 Mar 2015 Last revised: 16 Nov 2018

See all articles by Karen J. Alter

Karen J. Alter

Northwestern University - Department of Political Science; University of Copenhagen, Faculty of Law - iCourts Center of Excellence

Laurence Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Mikael Madsen

University of Copenhagen - iCourts - Centre of Excellence for International Courts; University of Copenhagen - Faculty of Law

Date Written: September 12, 2015

Abstract

This article provides a novel and provocative framework to assess the varied authority of international courts (ICs). We generate practicable metric that assesses de facto IC authority according to a conjunctive standard — the recognition of an obligation to comply with IC rulings, and the engagement in meaningful actions that push toward giving full effect to IC rulings. We then identify five possible types of IC authority — no authority in fact, narrow, intermediate, extensive, and public authority — that correspond to the different audiences for IC rulings. The goal of this metric is to help the contributors to a symposium on ICs assess how contextual factors largely beyond the control of judges affect IC authority. We also identify three analytically distinct categories of contextual factors that influence IC authority: institution-specific context, constituencies, and geopolitics. The final section of the paper considers the relationship of IC authority to IC power. Powerful ICs have intermediate and extensive authority that extends across a broad range of issue areas and types of cases.

Three features of this framework are distinctive. First, we separate IC authority from IC legitimacy, allowing for the possibility that authoritative ICs might lack legitimacy, and legitimate ICs might lack authority as we have defined it. Second, our framework moves beyond a number of prevalent but misguided binaries, such as the idea that ICs either do or do not have authority. Third, we provide a realistic tool to grapple with the complex reality that IC authority can vary by audience, among countries, over time, and across the issue areas within an IC’s jurisdiction.

Suggested Citation

Alter, Karen J. and Helfer, Laurence and Madsen, Mikael, How Context Shapes the Authority of International Courts (September 12, 2015). 79:1 Law & Contemporary Problems 1-36 (2016).; Duke Law School Public Law & Legal Theory Series No. 2015-13. Available at SSRN: https://ssrn.com/abstract=2574233 or http://dx.doi.org/10.2139/ssrn.2574233

Karen J. Alter (Contact Author)

Northwestern University - Department of Political Science ( email )

601 University Place
Evanston, IL 60208
United States

University of Copenhagen, Faculty of Law - iCourts Center of Excellence ( email )

Karen Blixens Plads 16
Copenhagen, DK-2300
Denmark

Laurence Helfer

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

Mikael Madsen

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen - Faculty of Law ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

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