LJIL Symposium: A Reply to the Comments by Andreas Føllesdal and Ruti Teitel

[Armin von Bogdandy is Director at the Max Planck Institute for Comparative Public Law and International Law and Ingo Venzke is a Senior Research Fellow and Lecturer at the Amsterdam Center for International Law, University of Amsterdam.]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

We are truly grateful to Andreas Føllesdal and Ruti Teitel for their perceptive comments on our article, On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority. Their insights will surely inform our continuous work on the multi-functionality, public authority, and democratic legitimacy of international courts and tribunals (ICTs). In this reply, we will focus on three main points to which both commentators draw attention: our understanding of functions; why ICTs require democratic legitimacy; and, finally, whose interests matter for a normative assessment.

Functional Analysis

Both commentators challenge us to clarify what we want to achieve with our functional analysis and, at the same time, suggest nuances to the four functions we do identify. Andreas Føllesdal specifically prompts us to choose – do we want to explain why ICTs exist, or do we see functions as legitimating the practice of ICTs? If either one or the other was our ambition we would indeed fall short of giving a convincing answer. But our functional analysis stands in a sociological tradition and aims at a better understanding of the phenomenon (cf., M. Madsen, ‘Sociological Approaches to International Courts’, in K. Alter, C. Romano, and Y. Shany (eds.), The Oxford Handbook of International Adjudication, 2013). We are not (neo-) functionalists, and neither develop an explanation of institutional developments nor a functional justification. Especially the latter point merits emphasis; a functional analysis does not — it cannot — justify the phenomenon it tries to understand (N. Luhmann, Legitimation durch Verfahren, 1983). But it might still be seen as potentially apologetic to frame a certain social consequence of an institution’s characteristic activity as a function. Because of this looming hazard, we keep the straightforward normative questions in sight. In fact, our functional analysis serves as a precursor for discussing the democratic legitimation of an ICT’s exercise of public authority. It aims at a better understanding of the phenomenon to sharpen normative questions.

Against the backdrop of an orthodox understanding of ICTs, which sees ICTs in the function of dispute settlement alone, we identify three more main functions: (1) the stabilization of normative expectations, (2) law-making, and, (3) the control as well as legitimation of public authority exercised by other actors. Ruti Teitel argues that ICTs pursue a further function — and find a more promising source of legitimacy than we are ready to acknowledge — in the development and protection of specific substantive values at the international level. Furthermore, she submits that ICTs step in and serve the values in domestic settings when national authorities have broken down. While it concerns the postulation of another function, it is true that this dimension of ICTs’ activity, especially of international criminal tribunals, is only weakly reflected in our summary analysis that draws together different ICTs on a high level of abstraction.

Democratic Legitimacy

Now, for some ICTs and some constellations, the development and protection of substantive values does go a long way as a basis for legitimacy. That is especially the case in the fields of human rights and criminal law. When applied to specific institutions and fields of law, our summary framework will need to open up to details and particularities upon closer inspection. But on a more general note, a substantive, value basis of legitimacy faces challenges similar to those of functional justifications. Are the goals not too vague and do they really justify the means? And how to reconcile conflicting goals? In addition, such an approach — not so in Teitel’s work — tends to lose sight of the actor. Who develops, protects, and thereby articulates and shapes the substantive values that lie at the basis? Such challenges lead us to understand ICTs as actors exercising public authority rather than organs of the international community.

Føllesdal raises the question as well of whether ICTs really require democratic legitimacy. Or is it not whether international law and the general institutional structure needs to be democratic? By defending the yardstick of democratic legitimacy for ICTs’ exercise of public authority we do not suggest that courts are representative institutions in the same way as parliaments might be. Yet, democratic legitimacy is the standard for all public authority, including the public authority of (international) courts. The way in which specific institutions are democratically justified of course then differs. In terms of ICTs, they can draw democratic legitimacy from the treaty that brings the institution into existence, from the law that they apply, from the way their judges are selected, from the procedure they follow, and from the reasons they give. We have developed the requirements of democratic legitimacy for ICTs in a first sketch in another forum (von Bogdandy & Venzke, 2012) and continue to do so in more detail in our forthcoming book (von Bogdandy & Venzke, In Wessen Namen? Internationale Gerichte in Zeiten Globalen Regierens, 2013).

In Whose Name?

Finally, both commentators invite us to further clarify our normative basis. Whose interests matter? Or, in other words, in whose name do ICTs speak the law? Teitel places emphasis on values of the international community and points to the ICTY’s seminal Tadic decision where, in her reading, ‘the Tribunal explicitly sought to understand the authority it exercised in light of the values that it was created to serve and (implicitly) the agreed importance of these to the international community’. Føllesdal asks explicitly, ‘Whose interests should count as touchstones for the legitimacy of ICTs?’

The answer depends on the basic understanding of ICTs and shows how functional analysis, though not in a position to justify, is intertwined with normative questions, such as, what is the ‘larger whole’ that sets the parameters for functional analysis? A first basic understanding sees ICTs as instruments for the settlement of disputes in the hands of the parties. They decide in the name of the states that created them. If ICTs are, second, understood as organs of the international community, then they decide, as Teitel suggests, in the name of that community. Third, as institutions of specific legal regimes, ICTs decide in the name of those regimes. In whose name then do they decide when we understand them as actors exercising public authority? Føllesdal asks that we choose whether is it in the name states or citizens?

We have argued that the exercise of pubic authority requires a modus of legitimation that lives up to basic premises of democratic legitimation. In the Kantian tradition, it is the freedom of individuals that shapes international judgments, however indirect and mediated that may be. How such democratic legitimation is possible beyond the national state is surely a vexed question, troubled by conceptual hurdles and resistant reality. We do not think that the world will follow the model of the European Union and, in fact, European integration shows such unique features that we exclude the Court of Justice of the EU from our analysis of ICTs. But this context has fruitfully advanced our thinking about democratic legitimation beyond the state. Drawing on those insights, we suggest that ICTs decide in the name of peoples and citizens. We do not choose either one or the other, but embrace this dual formula to reflect necessary indecision and plurality.