How Context Shapes the Authority of International Courts

Law and Contemporary Problems, Mar 2016

Karen J. Alter, Laurence R. Helfer, Mikael Rask Madsen

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How Context Shapes the Authority of International Courts

No. HOW CONTEXT SHAPES THE AUTHORITY OF INTERNATIONAL COURTS KAREN J. ALTER 0 1 LAURENCE R. HELFER 0 1 MIKAEL RASK MADSEN 0 1 0 Copyright © 2016 by Karen J. Alter, Laurence R. Helfer & Mikael Rask Madsen. This article is also available at 1 Karen J. Alter is a Professor of Political Science and Law at Northwestern University and a Permanent Visiting Professor at iCourts: Centre of Excellence for International Courts I - [Vol. 79:1 most active ICs. Our primary goal in explicating this framework is to create a metric for assessing how legal, political, and social factors shape whether an IC has any de facto authority, the scope of that authority, and whether that authority encompasses the full range of its delegated jurisdiction. Part II analyzes the distinctive features of ICs as international institutions. We identify similarities common to all ICs and explain how ICs differ in important ways from other international institutions and from domestic courts. Part III defines IC authority and develops a framework that permits scholars to assess differences in authority in fact, within and across courts. Building on earlier scholarship, we create a measure of authority that reflects the practices—that is, the words and actions—of different sets of actors or audiences, who range from the litigants in a specific case to a broader legal field of, for example, attorneys, government officials, and scholars. This part also explains our decision to put aside questions of actors’ motives and beliefs, thus separating authority in fact from both sociological legitimacy and normative legitimacy. This symposium focuses on how contextual factors that are largely beyond the control of international judges facilitate or hinder whether an IC has any authority in fact and, if so, the extent of that authority. Accordingly, Part IV identifies a range of institutional, social, and political factors that shape IC authority. Part IV also previews how the contributors to this symposium analyze these contextual factors as applied to different ICs. Some of our contributors also consider the ability of judges to influence these contextual factors. Part V introduces a third dimension—IC power and effectiveness. We consider how far an IC’s authority extends across the full range of its subject matter competence and the states subject to its jurisdiction. Some ICs establish authority that is capacious in one sense—the number of actors who accept an obligation to comply—but confined in another sense—the acceptance exists only for a narrow issue area or a few countries. So long as a court’s authority is limited in this way, its political and legal shadow remains relatively small. An IC becomes more powerful and influential when its authority expands not only to a wider circle of constituencies, but also across a broader range of legal issues and countries. Part VI concludes by summarizing the major findings of this issue and by identifying promising avenues for future research. II ICS AS INTERNATIONAL LEGAL INSTITUTIONS THAT FACE DISTINCT CHALLENGES Our analysis of the authority of ICs engages with a growing literature on international authority that focuses on global governance institutions or that imports domestic concepts about institutions and legal processes into the international realm.1 We not only build upon this literature, but also explain how ICs possess legal authority that differs in fundamental ways from that of other international institutions and from that of domestic courts. We begin by identifying how these differences create distinctive challenges for establishing, maintaining, and building IC legal authority.2 In the most general terms, legal authority is a form of power characterized by a content-independent response to a command or order. The response is content-independent because the command is not tailored to the recipient’s interests. Legal authority is more complex than parental authority, but it is similar in that subjects comply because an authoritative actor has said what conduct is required.3 Most ICs acquire formal legal authority—what many call de jure authority—through an act of delegation4 from states that establishes a court’s formal right to rule on disputes falling within its jurisdiction. The legal right to rule exists even if the moral or ethical basis of that right remains contested. Many scholars assert that ICs possess unquestioned authority simply by virtue of this act of delegation. Although delegation confers formal powers on ICs and specifies their functions in important ways, delegation alone is insufficient. A formally constituted court may receive no cases even if violations of the law under its jurisdiction are widespread. Or it may issue decisions that the parties ignore or that have no legal or political impact. The core challenge that ICs face, therefore, is transforming formal legal authority into authority in fact, also known as de facto authority. The distinctive structur (...truncated)


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Karen J. Alter, Laurence R. Helfer, Mikael Rask Madsen. How Context Shapes the Authority of International Courts, Law and Contemporary Problems, 2016, Volume 79, Issue 1,