Programs in International Justice and Society

"Differing Conceptions of Legitimacy for International Courts"

Since the beginning of my exploration into the field of international law, the question of its legitimacy has lingered in my mind. Oftentimes I had to question its importance and try to reason with the idea that some of the most powerful countries have decided to opt out of the International Criminal Court (ICC) — one of them being the USA. The reasons the country has not ratified or signed the Rome Statute are numerous. One of the main arguments is that the US judicial system is fair and capable of trying individuals of crimes that are also recognized by the ICC. But for many countries, the ICC has served as a supplemental jurisdiction when their own judicial systems are dysfunctional.

The idea that a country, especially one that has historically been deemed a powerful nation, could opt out of an intergovernmental organization as important as the ICC is in the realm of international criminal law, is an utter disappointment and feels like an abdication of responsibility on the part of the US, especially because, before the Trump administration, it seemed that defending human rights and civil liberties was something the country prided itself on. Be this as it may, US rejection of the Rome Statute suggests a questioning of the entire system of international law, the legitimacy of the various international courts, their reputation, and their relevance at large.

When I arrived in Oslo to intern at the Brandeis Institute for International Judges (BIIJ) 2018, I brought with me a suitcase filled with knowledge and experiences that I had accumulated in the different courts and tribunals headquartered in The Hague, the Netherlands. I had studied and worked for an entire semester in that city and had immersed myself in the culture and atmosphere of the ICC. The Hague is a place where there is such a collective collaboration for global justice, with people from all walks of life going there, longing to work for one of its many judicial international institutions.

Before arriving in Oslo, my thinking on the legitimacy of these different international courts was rather limited. From my own experience working at the ICC, I had come to believe that the existence of the Court is crucial, but it is also flawed in diverse ways, mostly because of its limits, and it requires the collaboration of many parties for it to function and have jurisdiction.

The first BIIJ session aimed to set a base for later discussions on the matter of legitimacy. It was critical to establish a common definition for the term, even if the outcome was that not everyone would agree with what was being said. Discussing the distinction between the normative legitimacy and sociological legitimacy of international institutions was an important nuance for me: normative legitimacy is the generalized assumption that the actions of an institution are desirable, proper or appropriate within some socially constructed systems of norms, values, beliefs and definitions; sociological legitimacy, on the other hand, refers to the beliefs and attitudes held by people about an institution.

In my opinion, these two approaches to legitimacy can complement each other. In fact, referring to the reading selections for the first session, there is an example given by Alexandra Huneeus that caught my attention. She said in her case study, which involved the ICC and the Inter-American Court of Human Rights in Costa Rica (IACtHR), that there was a “dynamic of ‘constructive interference’ [that] boosted each other’s legitimacy by both working toward the same end of accountability for the crimes of the paramilitary in the Colombian conflict.” The goals of the two institutions are the same, their authority is reinforced, as Huneeus claims, and it is considered “more justified.” She also argues that using the jurisprudence of the IACtHR “heightens the sociological legitimacy of both courts.” But it heightens the normative legitimacy of the two courts as well because there were shared views by the two courts that contributed to the assessment of the situation.

Furthermore, I asked myself during the institute whether legitimacy should rely on one conceptualization more than the other. If legitimacy relies more on the sociological approach, it could lead to biases — a human error is possible. One BIIJ participant said that a judge can make a mistake on account of expertise; that is, when one is too confident and relies too much on one's experience, a mistake may occur without the person noticing; it is not just biases. I believe that what leads to a positive sociological legitimacy is not whether a court makes mistakes or not, but rather the way in which such errors are addressed and fixed. Moreover, I believe that the judges' behavior is a critical ingredient of a sociological legitimacy, altogether based on public perception. I also believe one cannot happen without the other and that legitimacy itself relies on both conceptualizations.

I remember one of the attendees saying during a small group breakout session that his institution does not have a code of ethics, just some basic rules of the court. There may still be a public perception of bias, he noted. Subsequently, another attendee said that trust and confidence are important for her court. I think that they were both right and both opinions would contribute to adequately maintaining the legitimacy of a court.

The second person added that she had to sign a code of ethics when she joined her court and that it adds to the self-regulating system her court adheres to — in addition to having an ethics committee. The self-regulating system certainly would not work if there wasn't any sociological legitimacy, meaning a public perception that inspires trust and confidence in the court. At the same time, there is a guidance for an efficient self-regulating system through the awareness of normative standards that distinguish right from wrong and permit a universal legitimacy, proving still that the two conceptions of legitimacy are intertwined.

At the end of the BIIJ, as I was collecting the microphones and empty coffee cups, organizing the chairs and clearing up the rest of the conference's traces, I remember thinking that there are still so many counterarguments, perceptions of justice, democracy, and effectiveness that may affect the sociological legitimacy of international courts. My entire semester in The Hague definitely sparked my curiosity in finding a concrete answer to such questions — or at least in trying to.

Igenuinely thought there was one objective answer. Now, on the other hand, with myriad experiences under my belt, I think differently. I do not think that everyone is always going to be on the same page and even less when it comes to discussing the legitimacy and relevance of international courts. Just as there are different languages, cultures, and traditions, we all have our trust culture and different ways to resolve our conflicts.

Yes, as I thought before my visit to Oslo, the field of international law is flawed because of its many dead ends, questions with no answers as well as questions with more than one answer. I still think that way. On the other hand, it is not easy, but if it were crystal clear and outright objective, it would not be necessary to hold conferences like the BIIJ.

"The Impact of Dissents on the Legitimacy of International Law Bodies"

As the theme of the 2018 BIIJ was the legitimacy of International courts and tribunals, it seemed fitting that much of the discussion revolved around various practices of judges. Dissenting opinions were one contested issue, a practice which I learned was controversial within international justice. Many courts and tribunals do not allow judges to issue dissenting opinions at all, others allow anonymous ones, and only a few fully endorse them. The judges present at the institute came from courts and tribunals that covered the range of these positions. This diversity led to an enlightening discussion on the topic, with many different judges taking substantially different stances from one another.

As a student of U.S law, I found the controversy surprising. Dissents are a common feature of high profile U.S. Supreme Court cases in the United States, where they have important jurisprudential value. Justice Harlan's famous 1896 dissent on racial segregation in Plessy V. Ferguson, for example, was key to the eventual landmark decision sixty years later in Brown v. Board of Education.

As I listened to the BIIJ discussion, it became clear that the domestic context in which our Supreme Court operates is dissimilar in many ways to the various courts and tribunals of the international justice system. For one, the common law system has a strong tradition of dissents, whereas the civil law system, more widely practiced in Europe, tends to favor a single unanimous decision. Perhaps more importantly, however, is the fact that whereas the authority of domestic courts is generally established and absolute, the various international courts and tribunals still face extraordinary challenges in operating and enforcing their decisions.

The international legal system exists within an uncoordinated order, and individual states are sometimes loathe to comply with decisions unfavorable to their own ends. Two members from the World Trade Organization Appellate Body (AB), for example, were among the participants at the BIIJ this year. The AB reviews almost every case that runs through the Organization's dispute resolution mechanism. Yet, citing a list of demands, the United States alone has successfully prevented the nomination of new AB members.

The two BIIJ participants currently represent half of the entire AB — it should have seven members — which has massively hampered the WTO's ability to resolve trade disputes. The current era, it was noted, is a far cry from the heyday of international justice in the 1990s. Many other courts and tribunals are facing similar issues regarding funding, compliance, and operation.

The question regarding dissenting opinions intersects with these concerns about legitimacy. Many participants believed that dissents may serve to undermine the credibility of the courts and tribunals themselves. Compliance also remains a significant challenge for some international justice institutions. Years after issuing an arrest warrant for Sudanese President Omar al-Bashir, for instance, the International Criminal Court remains unable to detain him.

Even when countries are party to treaties or agreements such as the Rome Statute, it is not infrequent for governments to deny the legitimacy of a particular decision or ruling. Infamously, when President Andrew Jackson was ordered by the U.S. Supreme Court in 1832 to cease the forcible movement of indigenous Americans from the so-called “five civilized tribes,” he simply refused to comply. Today, in comparison, a scathing Supreme Court dissent may draw criticism to the Court, but there is hardly fear that the other branches of government might ignore its ruling. Perhaps, much like the Supreme Court under President Jackson, international justice institutions are still in their infancy.

Furthermore, there are considerable incentives which may drive dissents to be strongly worded. For one, many bodies such as the International Court of Justice and International Tribunal for the Law of the Sea may include ad-hoc judges, appointed by the countries involved in the dispute under certain circumstances. These individuals may neither be international law experts nor have a particularly strong incentive to ensure the preservation of legitimacy for the overall institution. Some ad-hoc judges may even have political incentives to actively seek to undermine the credibility of an unfavorable decision. Another incentive for dissents is simply publicity. U.S. Supreme court justices have been known frequently to write dissents that utilize caustic wit to lampoon majority opinions. Justice Scalia's dissent in the Obergefell v. Hodges case on marriage equality, for example, called aspects of the Court's majority opinion “pretentious” and “profoundly incoherent.” These sorts of dissents often get some media attention or play well with certain constituencies. Even when judges do not intend to be particularly biting, as one participant at the BIIJ noted, the very purpose of a dissent is to undermine a majority opinion, which necessarily implicates the court.

There remain compelling arguments in favor of dissents, however, which many BIIJ participants supported. In a common law system, a dissenting opinion allows for the critique of bad reasoning or questionable precedent in cases. Judges make mistakes and influential dissents can improve future judgments. Second, the publication of dissenting opinions may make courts and tribunals more transparent. As decisions by international bodies often have far reaching consequences, some would argue that the public has a right to know why a certain judge ruled against the majority, or what sort of arguments can be made against the majority opinion. More pragmatically, improved transparency might help these bodies appear more legitimate by better demonstrating their processes for decision making.

Perhaps most compellingly, many judges argued that the most harmful aspects of dissents could be tempered with reasonable rules or guidelines. Some courts and tribunals allow for anonymous dissents, for instance, which may discourage judges who might have written dissents for the sake of publicity. Another suggestion was for courts that allow dissents to implement guidelines within their codes of judicial conduct that would ensure dissents were worded respectfully, confirmed the legitimacy of the institution, and were not intended to discourage compliance.

The issue of dissents is simply one of a number of problems facing the body of international law courts and tribunals. While it seems convenient to point to rising tides of nationalism and populism as the storm for these bodies to weather, the truth may be more complex. The issues at the AB, for example, have worsened under the Trump administration but began under the Obama administration. If these organizations are to prove their worth and legitimacy to a deeply skeptical audience of politicians and leaders, they must act to combat criticism simultaneously on many fronts. Judging by the passion exhibited by the participants of the BIIJ, resolving the status of dissents in international jurisprudence may be one key element in the battle to strengthen these institutions.