International Courts and the Politics of Legitimation

In recent decades, states have empowered international courts (ICs) to serve a variety of roles in global governance, including settling disputes, clarifying the law, and monitoring compliance with international obligations. Lacking coercive power, international courts rely on other sources of power to perform in these roles. In particular, ICs rely on legitimacy to ensure that their interpretation of the law are accepted and their judgments are complied with. Legitimacy is thus crucial to the authority of international courts. Yet, recent examples abound to suggest that international courts regularly face legitimacy challenges, including defiance and exit and claims of bias and dubious pedigree and origins. For examples, the International Criminal Court has recently faced withdrawals, and political campaigns that claim it is biased and an expression of Western imperialism. Similarly, the European Court of Human Rights has faced defiance by Russia and constant claims of overreach by British media. This paper explores if, how and when ICs respond to these challenges. In particular, this paper focuses on the strategies of legitimation available to and used by ICs. Theoretically, this paper identifies three main types of legitimation strategies: procedural validation, persuasive argumentation, and judicial diplomacy. The paper theorizes the link between each type of legitimation strategy and the nature of a court’s legitimacy challenge. The paper explores the dynamics of legitimacy challenges and legitimation strategies through case illustrations, including the African Court of Human and Peoples’ Rights, the East African Court of Justice, and the Caribbean Court of Justice. As newer courts, that lack a reservoir of support, these courts show a full range of legitimacy challenges and strategic response strategies by ICs in order to better understand the politics of legitimation for international courts.