[Ruti Teitel, Ernst C. Stiefel Professor of Comparative Law, New York Law School, Visiting Professor, London School of Economics, and Affiliated Visiting Professor, Hebrew University of Jerusalem.]
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.
Armin Bogdandy and Ingo Venzke argue that we should see the increasing activity of international courts and tribunals as the exercise of public authority, requiring justification according to the principles characteristic of democratic constitutionalism within national states. They question, rightly, whether the functions and importance of international adjudicative bodies in today’s world can be seen as legitimate on the basis of traditional concepts such as state consent to jurisdiction. The idea of pubic authority implies that international courts and tribunals ultimately address themselves not just to sovereigns, who bow if they choose, but to citizens and the human interests of citizens.
Based on my own experience in studying courts and tribunals in relation to human rights, transitional justice, and international criminal law, I would like to challenge – or invite -Armin and Ingo to look at the question of legitimating pubic authority in a broader way when they deal with international adjudication, taking into account considerations that go beyond those that relate to judicial authority within mature well-functioning constitutional democracies.
First of all, some tribunals have been created and have had as their mission to further particular substantive values in the context of conflicts where the normal exercise of pubic authority has broken down. The ICTY, for example, had as one explicit goal ‘the restoration and maintenance of the peace’ in the former Yugoslavia. In Prosecutor v. Tadic, a seminal case, 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. I believe that this kind of substantive, values-based legitimacy is important to understanding the exercise of public authority by international adjudicators in the human rights and international criminal law fields.
It leads to a different way of posing the question of democracy, one that brings in however broader considerations than democratic consent, namely the relative competence or legitimacy of international courts and tribunals, and domestic institutions, to further the values in question. As I suggested in my 2011 book, Humanity’s Law, the primacy that attaches to human security in the framework of norms currently animating international legal authority may reflect a recognition that human security including elements of legal security (rule of law) is a precondition, or a presupposition, for the fulfillment of a broader range of rights including democratic rights. In this light, it is worth looking at the rise of international adjudication in the post-Cold-War world along with the increasing attention to the problem of weak and failed states. The decisions of international adjudicators in the international criminal law and human rights law areas often respond directly to political and legal institutional failures or gaps at the level of the state. The authority of international adjudicators thus may be seen as relative to that of other institutions. This is explicitly contemplated by the conception of “complementarity” that governs the exercise of jurisdiction by the International Criminal Court, legitimating the intervention of the Court on the basis of the unwillingness or incapacity of domestic institutions. The burgeoning caseloads of the Inter American Court and the European Court of Human Rights are concomitant with problems emerging from weak domestic legal systems and specific threats to the rule of law domestically (e.g., Russia and Turkey in the case of the ECHR). The diminished role of judicial review/ legitimacy is at the same time circumscribed by principles of admissibility and substantive jurisdiction, and relativised by domestic politics and the vision of threshold guarantees of the community delimited by the regional covenants.
A final point should be considered that is not unrelated to the observation that substantive values have a role in legitimating the authority of international adjudicators. How does judicial discourse shift power by empowering non-state actors, who in turn, by addressing themselves in various ways to international courts and tribunals and being addressed by them, become agents of legitimacy? International courts and tribunals are well situated to supply a rights-based discourse at least partly detached or autonomous from national political cultures and constitutionalisms – universalizable, secular, transnational – and with the authority of high human values. In a world that is interdependent but not integrated there quite simply may be a need for a potentially universalizable discourse that can still function in a context of difference between persons and peoples, one that comprehends wrongdoing and atrocities, and can be diffused through multiple institutions that would otherwise be isolated or fragmented – a discourse that allows recognition of individual rights and attribution of individual responsibility and accountability with or without the state, hence arguably allowing for some change. International adjudicators are better situated that many other international institutions to supply this discourse and the discourse is arguably a source of self-legitimisation for international courts and tribunals.
In sum, given this analysis of the interpretive and discursive role played by international judiciaries, there are good reasons for less concern with the legitimacy question. Perhaps, as Alexander Bickel understood in his well-known book on the topic, The Least Dangerous Branch, dealing with this question has always been to a greater or lesser degree a relative inquiry.