LJIL Symposium: Explaining and Justifying International Courts as Agents and Actors: Comments on von Bogdandy and Venzke’s ‘On the Functions of International Courts’

[Andreas Føllesdal is Professor at Norwegian Centre for Human Rights, University of Oslo]

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.

The expansive growth and influence of international courts, tribunals, and quasi-judicial bodies (ICTs) fuels well deserved interest across disciplines far beyond public international law, including political science and political philosophy. How are we to describe, explain, and assess this partial abdication of sovereignty by the main actors of a (formerly) state-centric world order?  Armin von Bogdandy and Ingo Venzke have again joined forces to illuminate these profound issues of the functions and legitimacy of ICTs, tying together and expanding on previous valuable insights (von Bogdandy and Venzke, 2011).

Von Bogdandy and Venzke diagnose some previous scholarship of ICTs as suffering from a two-fold myopia. Scholars have tended to focus on only one social function of international courts, and on a single source of legitimation: dispute settlement and state consent. Von Bogdandy and Venzke start with the plausible and well-argued observation that ICTs now cause impact in ways far beyond that of instruments for settling disputes among their creators. These further functions stabilize normative expectations by several means: law making; judicial interpretation; and, the control and (hence) legitimation of other authorities (cf, Alter 2013). Von Bogdandy and Venzke furthermore identify intriguing and far-reaching challenges of ICTs to the state-centred world order paradigm. Three further supplemental and partially competing traditions are those that see ICTs as  agents (‘organs’) of a world community, ‘institutions’ of legal regimes, and as actors who exercise public authority. Implications range from the reduced salience of state consent as the main mode of legitimation of international law and courts, entailing ‘restrictive interpretation’ to the appropriate role of amici curiae briefs and the need to differentiate modes of legitimation amongst the ICTs.

The following observations from a fellow traveller point to some topics for further elaboration and development. First, von Bogdandy and Venzke’s contribution should remind us all of the benefits of bringing institutionalist traditions in political science to bear on the study of ICTs. These traditions study institutions partly as somewhat independent actors. These actors change over time, as do their interests, and these actors shape the policy preferences and broader interests of other actors such as states.

Some issues in the article by von Bogdandy and Venzke merit further elaboration and clarification, to avoid criticism that they too suffer from myopia. Firstly, some concerns about the contents and concept of ‘functions’ they elaborate, then second on the modes of legitimation. In terms of their functions, ICTs undoubtedly have a wide range of effects, some of which go beyond von Bogdandy and Venzke’s present typology. Helfer and Slaughter long ago proposed several further worthy candidates; ’articulating social and political ideals,… and securing social change’. (Helfer and Slaughter, 1997 at 282). And not least, ICTs contribute to disaggregate the state: ’The possibility of direct relations between a supranational court and national courts, or between a supranational regulatory agency and its domestic equivalent, pierces the shell of state sovereignty and creates a channel whereby supranational officials can harness the coercive power of national officials.’ (Slaughter, A New World Order, 2004 at 145; cf, Helfer and Slaughter, 1997 at 288)

That ICTs disaggregate the state is surely an important effect. According to von Bogdandy and Venzke, among the central normative consequences is that ICTs thus help ‘hollow out’ domestic democratic modes of accountability (cf, Føllesdal and Hix, 2006), without any clear replacement in sight – trust in a ‘global community of judges’ notwithstanding (Slaughter, A New World Order, 2004 at 208; cf, Anderson, 2005).  I return to concerns about such a ‘democratic deficit’ below. But this effect should also lead us to wonder what counts as a ‘function’ in von Bogdandy and Venzkes’ account of ICTs.

Is it ‘functionalism light’? Von Bogdandy and Venzke write neither explanation nor justification of the several ‘functions’ of ICTs. It remains for later contributions to determine how charitable readers shall understand this term. They often seem to mean the ICTs’ many ’contributions to social interaction’. This claim may appear ‘myopic’, in that it leaves several questions unanswered. Do these functions help explain why ICTs emerged? That is, were these ‘functions’ ever part of any actor’s objectives, and if so, whose and which? How do we determine whether certain effects – such as the disaggregation of the state – is also a function?

Leaving aside the methodological debates concerning mechanisms and functionalism in social science, consider also some normative implications and challenges. Do these functions – however identified – help assess the effectiveness of ICTs and/or their legitimacy?

Maintaining social interaction and stabilizing normative expectations are only sometimes normatively justifiable – inter alia dependent on the terms of interaction and the substantive contents of the expectations. Thus we should agree with von Bogdandy and Venzke that legitimacy requires us to go beyond the objectives and expectations of those for whom ICTs are instruments, be they states, the ‘world community’, or ‘regimes’. Consider that one normative expectation of international relations is the one which Thucydides ascribed to the Athenians against the Melians; “the standard of justice depends on the power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept.” (Thucydides). Clearly at odds with this is the objective to promote peace by prohibiting the use of force. A third, more complex value is the ICJ’s alleged objective ‘to ensure international peace and human rights’, and other normative statements in favour of a just and stable international order. A fourth set of expectations concern market norms, such as those of WTO members and market participants.

How to adjudicate among such and other norms and values – and among ICTs – becomes urgent when some objectives are challenged, or when they conflict (as with the Athenians and Melians), and which may be expected with the growth of ICTs. The upshot is that critical attention to how ICTs appear to contribute to ‘social interaction’ seems a wise place to start normative arguments, but not a sufficient basis.

Von Bogdandy and Venzke claim – without much argument offered this time – that the way forward is  thus, ‘Characterizing  [the ICTs’] activity as an exercise of public authority sets the parameters for their legitimation generally.’ This sounds fruitful, but at least three issues merit much more attention in further studies: (1) it is not obvious that such activities are best described, transformed , or assessed as the intentional objectives of any actor (whether states or individuals) or of a ‘public authority’ – how does this paradigm assist our explanation or assessment?; (2) what is the proper ‘unit of analysis’ that is to be regarded as ‘public authority’ – an ICT in isolation, the set of ICTs, the ‘international judiciary’, or the ‘global basic structure’ (Føllesdal, 2011) within which ICTs interact with other institutions?; and, (3) whose interests should count as touchstones for the legitimacy of ICTs regarded as exercises of public authority – those of individuals as ultimate units of moral concern, of all states, of only democratic states, or of some complex combination of the three?

A final point for further elaboration concerns von Bogdandy and Venzke’s claim that ICTs ‘demand a modus of justification that lives up to basic premises of democratic legitimacy’. This claim may also seem a bit myopic, as if based too hastily on normative premises of a well-functioning democratic state. A more charitable reader is left wondering both exactly what this claim entails as to institutional design, and how this claim is justified.

To illustrate some of the remaining issues, first consider, why should we regard ‘democratic accountability’ as necessary for all public institutions to be legitimate? Granted, if the normative concern is ultimately to be able to justify shared institutions as a whole to each individual subject to them, democratic accountability – constrained by independent (and thus in some sense undemocratic) courts – may often be the best institutional mechanism to ensure sufficient responsiveness (Føllesdal and Hix, 2006). But such a comparative normative case needs to be spelled out, not least for institutions above the state – characterized by multi-level governance where non-democratic states remain significant actors. Consider second, what is the unit of normative assessment? Which unit should be democratically governed – is it every ICT, or the set of them? Either claim would seem to fit poorly with some of the reasons states create such somewhat independent institutions. Or is it the ‘global basic structure’ as a whole that should be under sufficient direct and indirect democratic control? (Føllesdal, 2009)

To conclude, let me repeat that these questions are not intended rhetorically as camouflaged sceptical criticism. Instead, they indicate some of the issues that von Bogdandy and Venzke have helped highlight, and that we must hope that they and others will address in the years to come. What is the impact of ICTs on the international and domestic intertwined legal orders, and on individuals’ best interests? And, what must be done to ensure that ICTs as a whole become and remain legitimate, so that other actors have reason to defer?