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Multilevel Legitimacy Standards for International Courts: Creation, Purpose and Rule-Setting Competences

Institutions
International Relations
Political Theory
Courts
Competence
Antoinette Scherz
Universitetet i Oslo
Antoinette Scherz
Universitetet i Oslo

Abstract

International courts are not simply applying international law but are also interpreting and developing it and in that sense set rules and exercise public authority. Therefore, the question arises whether these institutions are legitimate. Since international institutions do not claim to rule in the same, exclusive way as states, legitimacy must be addressed from an international perspective In order to answer the question of the legitimacy of international courts, I argue that the concept of legitimacy that applies to the international institutions is, at its core, rooted in the capacity of an institution to generate content-independent reasons for non-interference and compliance. In order to generate such reasons, international institutions do not need to be fully democratic, but instrumental and procedural. This understanding draws on Buchanan’s metacoordination view of legitimacy and explores how it can be applied to international courts. In order to develop a consistent understanding of the legitimacy of international courts and their relations to states, it is necessary to clarify what standards are necessary to give states, and particularly democracies, reasons comply with international courts. On my account the appropriate standards of legitimacy depend fundamentally on three aspects of legitimacy: the creation, the purpose and the competences of the institution. Regarding the creation of international courts, I argue that we still largely need to rely on the standard of state consent even though certain restrictions apply. Focusing on the purpose of institutions and the reasons they provide, the here proposed concept of legitimacy has the advantage that it cannot only explain why the facilitated cooperation between states increases the legitimacy of an international institution but also why the participation in an international institution can increase the legitimacy of states. I distinguish between three general functions of international courts: first, the application and interpretation of law; second the solution of coordination problems; and third, the creation of law. Application and interpretation of the law require international courts to follow the general standards of impartiality and independence that apply to courts as agents of the rule of law. Coordination between states but also individuals and states demand international courts to establish stable and reliable procedures. The function of international courts to create law can be seen as specifically problematic since they are not democratically elected like the legislatives of constitutional democracies and furthermore seem to violate the institutional separation of power. Finally, I argue that the rule-setting competences concern both about what an institution can set rules and how they apply. This can be captured by four dimensions: 1) scope, 2) domain sensitivity, 3) applicability and 4) impact. An increase in any of these dimensions raises the legitimacy burden for the institution.