Academic

Grossman on International Adjudicative Bodies & Legitimacy

By Lawrence Solum

Nienke Grossman (Georgetown University - Law Center) has posted Legitimacy and International Adjudicative Bodies (George Washington International Law Review, Fall 2009) on SSRN. Here is the abstract:

This article proposes a theory of legitimacy tailored to international courts and tribunals. In Part II of this paper, I begin by defining an "international adjudicative body" as a dispute resolution mechanism - also called a "court" or "tribunal" - which decides disputes between litigants, at least one of whom must be a state, and I comment on this definitional choice, including its limitations. The analysis in this paper is limited only to adjudicative bodies where states are involved as litigants because a different set of legitimacy-influencing factors may be present when only private parties are involved. Next, I lay out a theory of legitimacy specifically for international adjudicative bodies, and I distinguish it from prior theoretical approaches, particularly those reliant on "legal legitimacy" alone. Borrowing, in part, from Daniel Bodansky and others, I define a "legitimate" international adjudicative body as one whose authority is perceived as justified.

I identify three factors which influence the perception of justified authority. These factors, introduced in Part II, but discussed in depth in Part III, include (A) the fair and unbiased nature of the adjudicative body, (B) commitment to the underlying normative regime that the body is interpreting and applying, and (C) the body's transparency and relationship to other democratic values. The three categories are deduced or drawn from state practice as embodied in treaty provisions giving rise to or regulating a cross-section of six international adjudicative bodies - what states actually require before consenting to a court's jurisdiction - as well as legal and political science literature on legitimacy, and logic. It is not the purpose of this paper to provide empirical support for these hypotheses, but rather to propose a framework for thinking about legitimacy for future debate and possible empirical testing.

Very interesting paper.

Full post as published by Legal Theory Blog on February 05, 2009 (boomark / email).