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)