In Whose Name?: A Public Law Theory of International Adjudication (International Courts and Tribunals Series)

The vast majority of all international judicial decisions have been issued since 1990. This increasing activity of international courts over the past two decades is one of the most significant developments within the international law. It has repercussions on all levels of governance and has challenged received understandings of the nature and legitimacy of international courts. It was previously held that international courts are simply instruments of dispute settlement, whose activities are justified by the consent of the states that created them, and in whose name they decide. However, this understanding ignores other important judicial functions, underrates problems of legitimacy, and prevents a full assessment of how international adjudication functions, and the impact that it has demonstrably had. This book proposes a public law theory of international adjudication, which argues that international courts are multifunctional actors who exercise public authority and therefore require democratic legitimacy. It establishes this theory on the basis of three main building blocks: multifunctionality, the notion of an international public authority, and democracy. The book aims to answer the core question of the legitimacy of international adjudication: in whose name do international courts decide? It lays out the specific problem of the legitimacy of international adjudication, and reconstructs the common critiques of international courts. It develops a concept of democracy for international courts that makes it possible to constructively show how their legitimacy is derived. It argues that ultimately international courts make their decisions, even if they do not know it, in the name of the peoples and the citizens of the international community.-- Provided by Publisher Cover 1 In Whose Name? 4 Copyright 5 Table of Contents 8 Table of Cases 12 Table of Instruments 24 List of Abbreviations 32 1. Agenda and Objectives 36 A Framing the Problem 36 B New Basic Concepts for International Courts 40 1 Multifunctionality 40 a) Dispute settlement 44 b) Stabilization of normative expectations 45 c) Law-making 47 d) Control and legitimation 49 2 The exercise of public authority 52 3 Democracy 53 C Three Objections, Three Responses 56 1 A study of positive law or of normative theory? 56 2 An excessively broad concept of what constitutes a court? 58 3 Eurocentrism? 61 2. Basic Conceptions of International Courts 63 A Courts as Instruments of Dispute Settlement 64 1 International courts in a state-centric world order 64 2 The cautious International Court of Justice 71 3 The Permanent Court of Arbitration and the Iran–United States Claims Tribunal 79 B Courts as Organs of the Value-Based International Community 81 1 International courts as beacons of humanity 83 2 The daring ICJ 91 3 The European Court of Human Rights 98 4 International criminal courts 106 5 The International Tribunal for the Law of the Sea 111 C Courts as Institutions of Legal Regimes 114 1 International adjudication for an interconnected world 114 2 The dispute settlement body of the WTO 120 3 Investment arbitration within the framework of the ICSID 125 D Toward a Democracy-Oriented Theory 130 3. Key Elements of a Public Law Theory of Adjudication 136 A The Public Authority of International Courts 136 1 The inevitability of judicial law-making 136 a) Adjudication and law-making 137 b) Law-making for the case at hand and for the future 140 c) Reasons: on the difference between legislation and judicial law-making 144 2 The exercise of international public authority 146 a) The concept of authority and the judicial decision 146 b) Precedents in international law 150 B Specific Legitimation Problems of International Adjudication 154 1 Centralized judiciary and a decentralized legislative power 154 a) Institutional asymmetries 154 b) The treaty and the two-level game 157 c) Why case-law needs a legislator 158 d) Why Lauterpacht’s and Kelsen’s theory is outdated 160 2 The potential and dangers of the constitutionalist argument 163 a) The constitutionalist approach 163 b) A constitution-supplementing function? 166 c) Internal constitutionalization of international organizations 168 3 Fragmentation as a problem for democracy 169 C A Concept of Democracy for International Adjudication 170 1 Problem and approach 170 2 Basic elements 175 a) The democratic subject 175 b) Dual democratic legitimacy 180 c) From self-government to political inclusion 181 3 The role of representative institutions for international courts 182 4 The foundations of court-generated democratic legitimation 187 4. Pathways of Democratic Legitimacy 191 A Judges 193 1 What makes a good bench? A democracy-oriented reconstruction 194 2 The nomination and selection process 198 3 The democratic potential of international bodies 202 B The Judicial Process 206 1 Publicness and transparency 207 a) Oral proceedings 207 b) Decision-making by judges 210 c) Individual opinions 212 2 Intervention by third parties and amicus curiae briefs 213 3 A legal remedy 219 C The Decision 221 1 Reasons and limits 221 a) Judicial method from a democracy-oriented perspective 221 b) Systematic interpretation as democratic strategy 224 c) The limits of a decision and its justification 228 2 Judicial interaction as democratic control 231 3 Embeddedness in political processes 233 a) Democratically calibrated intensity of review 233 b) The use of soft law 236 c) Strengthening political processes 240 5. In Whose Name? 242 A Courts as Actors of Global Governance 242 B In Whose Name, Then? 244 C Outlook 249 Bibliography 252 Index of Persons 296 Index of Subjects 298 International courts and tribunals make decisions which shape international law. Yet what grants them the legitimacy to make these decisions in the first place? This book proposes a theory of international public law that argues that these international courts democratically derive their legitimacy from the people and citizens. The vast majority of all international judicial decisions have been issued since 1990. This increasing activity of international courts over the past two decades is one of the most significant developments within the international law. It has repercussions on all levels of governance and has challenged received understandings of the nature and legitimacy of international courts. It was previously held that international courts are simply instruments of disputesettlement, whose activities are justified by the consent of the states that created them, and in whose name they decide. However, this understanding ignores other important judicial functions, underrates problems of legitimacy, and prevents a full assessment of how international adjudication functions,and the impact that it has demonstrably had. This book proposes a public law theory of international adjudication, which argues that international courts are multifunctional actors who exercise public authority and therefore require democratic legitimacy. It establishes this theory on the basis of three main building blocks: multifunctionality, the notion of an international public authority, and democracy. The book aims to answer the core question of the legitimacy of international adjudication: in whose name do international courtsdecide? It lays out the specific problem of the legitimacy of international adjudication, and reconstructs the common critiques of international courts. It develops a concept of democracy for international courts that makes it possible to constructively show how their legitimacy is derived. It arguesthat ultimately international courts make their decisions, even if they do not know it, in the name of the peoples and the citizens of the international community Agenda And Objectives -- Basic Conceptions Of International Courts -- Key Elements Of A Public Law Theory Of Adjudication -- Pathways Of Democratic Legitimacy -- In Whose Name? Armin Von Bogdandy And Ingo Venzke ; Translated From The German By Thomas Dunlap And Revised By The Authors. Includes Bibliographical References (pages 217-260) And Indexes.