How International Courts Enhance their Legitimacy

TY - JOUR

T1 - How International Courts Enhance their Legitimacy

AU - Dothan, Shai

PY - 2013

Y1 - 2013

N2 - International courts strive to enhance their legitimacy, that is, they would like the members of the international community to perceive their judgments as just, correct and unbiased even if they do not agree with their specific content. This Article argues that international courts take into account the actors they interact with, the norms they apply, and the conditions they operate under as they try to enhance their legitimacy. It demonstrates strategic behavior towards that end in the judgments of two prominent international courts - the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR). International courts interact with states under their jurisdiction and with their national courts. International courts try to preserve their legitimacy vis-à-vis states; at the same time, they want to signal that states will comply with them even if they issue judgments states disagree with. International courts can cooperate with national courts and gain legitimacy from interacting with legitimate national courts. The norms that international courts apply constrain their ability to maneuver their judgments in ways that can help their legitimacy, but at the same time help legitimize their judgments. International courts use various tactics to shape their reasoning in order to improve their legitimacy. The behavior of international courts is scrutinized by the domestic public within each state. That public has certain agendas, priorities and preferences. The domestic public's agenda is a condition that the court must respond to, but sometimes courts can also shape that agenda to their benefit.

AB - International courts strive to enhance their legitimacy, that is, they would like the members of the international community to perceive their judgments as just, correct and unbiased even if they do not agree with their specific content. This Article argues that international courts take into account the actors they interact with, the norms they apply, and the conditions they operate under as they try to enhance their legitimacy. It demonstrates strategic behavior towards that end in the judgments of two prominent international courts - the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR). International courts interact with states under their jurisdiction and with their national courts. International courts try to preserve their legitimacy vis-à-vis states; at the same time, they want to signal that states will comply with them even if they issue judgments states disagree with. International courts can cooperate with national courts and gain legitimacy from interacting with legitimate national courts. The norms that international courts apply constrain their ability to maneuver their judgments in ways that can help their legitimacy, but at the same time help legitimize their judgments. International courts use various tactics to shape their reasoning in order to improve their legitimacy. The behavior of international courts is scrutinized by the domestic public within each state. That public has certain agendas, priorities and preferences. The domestic public's agenda is a condition that the court must respond to, but sometimes courts can also shape that agenda to their benefit.

M3 - Journal article

SN - 1565-1509

VL - 14

SP - 455

EP - 478

JO - Theoretical Inquiries in Law

JF - Theoretical Inquiries in Law

ER -