The legitimacy of international courts: The challenge of diversity

Abstract

The emergence of an international judicial system is often perceived as a cornerstone in the process of building a ‘global’ system of governance.1 Since the end of the Cold War, we have witnessed the rapid proliferation of international courts and tribunals (hereinafter ICs) and the progressive expansion of their scope of jurisdiction to areas as diverse as trade, the law of the sea, human rights, and international crimes (Katzenstein, 2014; Kingsbury, 2012). These ‘new-style’ ICs and quasi-judicial bodies (Alter, 2014, p. 68) allow for wider access from potential litigants, and they are more autonomous than their predecessors, operating often on a transnational rather than inter-state model (Keohane et al., 2000). In doing so, they transcend their function of mere dispute settlement mechanisms to become law making actors in their own right, with significant discretion to interpret international law (Besson, 2014, pp. 419–428). This development has been hailed as a major shift from an international system based on politics and power toward one governed by shared rules and principles under a genuine ‘global rule of law’. Cosmopolitan-minded scholars and advocates, who dispute the place that territorial borders and national identities should have in delimiting our fundamental rights and allocating public goods, rejoice about the gradual collapse of the divides between the domestic and the international. Yet with the growing independence and expansion of the mandate of international judicial systems, these mechanisms have attracted attention as to their legitimacy and accountability in relation to different stakeholders. The international judiciary is no longer seen as “the least dangerous branch.”2 For some critics, accepting the jurisdiction of ICs entails ceding national sovereignty to ‘foreign’ judicial powers, which have an increasing capacity to create new law. For others, the international judiciary in the absence of a global democratic constituency represents another imposition of Western values that remain alien to other cultures. Moreover, in the current political climate, institutions of global governance, including ICs, are confronted by growing reactionary populist movements that pit democracy against internationalism. To these movements, the turn toward transnational forms of governance, legality and adjudication is perceived as a democratic dysfunction and belittled as harmful to the preservation of the identity and autonomy of a (monolithic and nationalistic) view of the polity. Regional and international human rights bodies, and the International Criminal Court (ICC), are particular targets, insofar as they typically address how states should treat individuals on their own territory. They also tend to protect marginalized minorities against the majority's conception of the identity and values of the polity, and seek to impose rule of law constraints on the executive and legislative branches that often claim democratic support. Yet other ICs—especially in the area of trade—have also become the target of populist and sovereigntist leaders as they are seen to impose unjustified constraints on desired domestic policies. In light of such diverging approaches, it becomes ever more crucial to inquire into the foundations of international courts' legitimacy. To this end, a number of scholars have called for a ‘democratic’ re-conceptualization of the international judiciary (Bogdandy & Venzke, 2014; Grossman, 2013). This has generated attention to a broad range of elements, from appointment processes to procedural rules in order to guarantee judicial independence but also accountability to different stakeholders (Grossman, 2013; Pérez, 2017), typically with a focus on specific types of courts (Føllesdal et al., 2014; Hayashi & Bailliet, 2017; Hennette-Vauchez, 2015). Yet, as I will argue, by reducing the so-called ‘legitimacy deficit’ to a problem of institutional factors and representation of ‘national’ constituencies, we might be overlooking a deeper dimension of the ‘diversity challenge’—one that emerges out of the need for and The this by an of the legitimacy of ICs that to some of the in the populist of ICs, in particular the between democracy and internationalism. 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