The roles of international courts in securing rule of law for transnational governance

Since the end of the Cold War, states have established a cascade of international courts and tribunals (ICTs) with functions far beyond the early aims of reducing the risk of war. Some hail ICTs as constitutional constraints on an anarchic system of states, as islands of effective world governance. To others this global judiciary suffers from several legitimacy deficits, ranging from whether they achieve their intended effects, to claims that ICTs 'judicialize' and 'hollow out' the powers of sovereign states, with little accountability or order. This paper addresses one central topic within this broader complex, namely how the ICs – using the European Court of Human Rights (ECtHR) as a particularly instructive case - may bolster rule of law domestically and internationally, in a partially constitutionalized global legal order – and how the ECtHR itself, as other ICs, may threaten rule of law standards worth maintaining at the international level. ICs may protect against arbitrary power – also such as arises at the transnational level, by actors somewhat independent of states. But ICs themselves may also become new sources of such arbitrary power. I first identify which interests of individuals give us reason to value domestic rule of law. A central concern is to be protected against the arbitrary discretion of others – 'non-domination'. This stems from at least two interests: not to be harmed, and our ability to plan based on firm expectations about others' conduct. I then move to consider two relationships between such values and the ECtHR. Firstly, how well does the ECtHR itself live up to requirements necessary to secure non-domination, and secondly whether and how it promotes these interests by means of the rule of law within states.