Legitimacy of International Courts and Reasons to Comply for States

The tension between the authority of states and the authority of international institutions is a persistent feature of international relations, which legitimacy assessments of international institutions must address. Such legitimacy assessments determine whether a particular international institution exercises legitimate authority that creates binding obligations for states. The paper understands the legitimate authority of an institution as providing exclusionary content-independent reasons for states to comply and not to interfere. Yet what are such reasons for states? What kind of reasons can ground authority? And are the reasons that apply do states different from those for individuals? The first part of this paper addresses these questions by proposing an autonomy-based conception of legitimacy. It argues that self-regarding reasons cannot ground political authority with the respective demand for compliance, because the protection of autonomy needs to be valued higher. Therefore, only other-regarding reasons can ground authority. The paper argues further that reasons for states are based on reasons that apply to individuals. This highly restricts the domain of self-regarding reasons, which cannot be subject to the authority of international institutions. Finally, it discusses whether there is a difference in reasons for democratic and non-democratic states. The second part outlines how to think about different aspects that determine the legitimacy of institutions. It distinguishes three fundamental aspects of legitimacy: 1) the purpose, 2) the creation, and 3) the political power of the institution. It discusses whether standards of consent, democracy or service are required to protect autonomy with regard to these legitimacy aspects. The third part of the paper illustrates how these theoretical consideration bear on legitimacy assessments of specific international institutions on the example of international courts. It shows how the theoretical framework helps to understand and to evaluate legitimacy challenges that have been leveled against the ECHR and against the ICC.