Berman: Authority in International Law

Franklin Berman (Essex Court Chambers) has posted Authority in International Law. Here's the abstract:

The author discusses the question of authority when determining the content of an international legal rule. Taking Article 38(1)(d) of the ICJ Statute as a point of departure, he determines through meticolous analysis what ranks as judicial decisions as well as teachings within the meaning of the norm. The author then proceeds to a number of factors to determine authoritativeness: objectivity, knowledgeability, depth of analysis, and the presence or otherwise of reasoning and, in particular, the persuasiveness of an opinion. In the case of judicial pronouncements, the author points out that the paradox between Article 59 and Article 38(1)(d) of the ICJ Statute is only an apparent one. While judgments of the Court are binding only between the parties, it is merely the underlying reasoning that can be taken into account in the context of Article 38(1)(d) if considered persuasive. Without central authority, authoritativenes in international law must always be earned which is also the reason for the lack of an hierarchical order between as well as within judicial pronouncements and learned writings though the former are usually more likely to fulfil the criteria of authoritativeness. In both cases, however, previously acquired reputation of a court or even an individual judge as well as of a learned writer can create a presumption of authoritativeness. On a more general level, the author concludes with a call for a more careful differentiation between the determination of law and its application. Putting the issue discussed into perspective, the author argues that situations of law determination arise, contrary to common understanding, in fact far less often than situations of law application.

Alter, Helfer, & Madsen: International Court Authority

Karen J. Alter (Northwestern Univ. - Political Science), Laurence R. Helfer (Duke Univ. - Law), & Mikael Rask Madsen (Univ. of Copenhagen - iCourts: Center of Excellence for International Courts) have published International Court Authority (Oxford Univ. Press 2018). Contents include:

• Karen J. Alter, Laurence R. Helfer & Mikael Rask Madsen, International Court Authority in a Complex World
• Karen J. Alter, Laurence R. Helfer and Mikael Rask Madsen, How Context Shapes the Authority of International Courts,
• James Thuo Gathii, The East African Court of Justice: Human Rights and Business Actors Compared
• Solomon Ebobrah, The ECOWAS Community Court of Justice: A Dual Mandate with Skewed Authority
• Claire Moore Dickerson, The OHADA Common Court of Justice and Arbitration: Its authority in the Formal and Informal Economy
• Tendayi Achiume, The SADC Tribunal: Socio-Political Dissonance and the Authority of International Courts
• Salvatore Caserta & Mikael Rask Madsen, The Caribbean Court of Justice: A Regional Integration and Post-Colonial Court
• Karen J. Alter & Laurence R. Helfer, The Andean Tribunal of Justice: From Washington Consensus to Regional Crisis
• Alexandra Huneeus, The Inter-American Court of Human Rights: Constitutionalism and Constitutional Lawyers across Countries
• R. Daniel Kelemen, The Court of Justice of the European Community: Changing Authority in the Twenty-First Century
• Mikael Rask Madsen, The European Court of Human Rights: From the Cold War to the Brighton Declaration and Backlash
• Emilia Justyna Powell, The International Court of Justice and Islamic Law States: Territory and Diplomacy
• Gregory Shaffer, Manfred Elsig, & Sergio Puig, The World Trade Organization's Dispute Settlement Body: Its Extensive but Fragile Authority
• Leslie Vinjamuri, The International Criminal Court: The Paradox of Its Authority
• Ron Levi, John Hagan, & Sara Dezalay, International Criminal Tribunals: Prosecutorial Strategies in Atypical Political Environments
• Karen J. Alter, Laurence R. Helfer & Mikael Rask Madsen, International Court Authority in Question: Introduction to Part III
• Andrei Marmor, Authority of International Courts: Scope, Power and Legitimacy
• Michael Zürn, International Courts: Command v. Reflexive Authority
• Ingo Venzke, International Court's De Facto Authority and its Justification
• Jessica Greenberg, Jurisdiction, politics and truth-making: International Courts and the formation of translocal legal cultures
• Andreas Follesdal, The Lords and Lady doth Protest too Much, Methinks: On Authority, Legitimacy and Power, on Motives and Beliefs
• Ian Hurd, Authority and International Courts: A Comment on 'Content Independent' Social Science
• Karen J. Alter, Laurence R. Helfer and Mikael Rask Madsen, Conclusion: Context, Authority, Power

Mendes & Venzke: Allocating Authority: Who Should Do What in European and International Law?

Joana Mendes (Univ. of Luxembourg - Law) & Ingo Venzke (Univ. of Amsterdam - Law) have published Allocating Authority: Who Should Do What in European and International Law? (Hart Publishing 2018). Contents include:

• Joana Mendes & Ingo Venzke, Introducing the Idea of Relative Authority
• Susan Rose-Ackerman, Democratic Legitimacy and Executive Rule-making: Positive Political Theory in Comparative Public Law
• Eoin Carolan & Deirdre Curtin, In Search of a New Model of Checks and Balances for the EU: Beyond Separation of Powers
• Mikael Rask Madsen, Bolstering Authority by Enhancing Communication: How Checks and Balances and Feedback Loops can Strengthen the Authority of the European Court of Human Rights
• Jochen von Bernstorff, Authority Monism in International Organisations: A Historical Sketch
• Andreas von Staden, No Institution is an Island: Checks and Balances in Global Governance
• Bruno De Witte, The Role of the Court of Justice in Shaping the Institutional Balance in the EU
• Joseph Corkin, Refining Relative Authority: The Judicial Branch in the New Separation of Powers
• Dominique Ritleng, Judicial Review of EU Administrative Discretion: How Far Does the Separation of Powers Matter?
• Chantal Mak, First or Second Best? Judicial Law-making in European Private Law
• Maurizia De Bellis, Relative Authority in Global and EU Financial Regulation: Linking the Legitimacy Debates
• Diane A Desierto, Relative Authority and Institutional Decision-making in World Trade Law and International Investment Law

Alter, Helfer, & Madsen: International Court Authority (Introduction)

Karen J. Alter (Northwestern Univ. - Political Science), Laurence Helfer (Duke Univ. - Law), & Mikael Madsen (Univ. of Copenhagen - Law) have posted International Court Authority (Introduction) (in International Court Authority, Karen J. Alter, Laurence Helfer, & Mikael Madsen eds., forthcoming). Here's the abstract:

An innovative, interdisciplinary and far-reaching examination of the actual reality of international courts, International Court Authority (Oxford University Press, 2018) challenges fundamental preconceptions about when, why, and how international courts become important and authoritative actors in national, regional and international politics. Alter, Helfer and Madsen provide a novel framework for conceptualizing international court authority that focuses on the reactions and practices of these key audiences. Eighteen scholars from the disciplines of law, political science and sociology apply this framework to study thirteen international courts operating in Africa, Latin America and Europe, as well as on a global level. Together the contributors document and explore important and interesting variations in whether the audiences that interact with international courts around the world embrace or reject the rulings of these judicial institutions. This newly written book introduction situates our practice-based approach to studying international court authority, explaining how it differs compared to normative, sociological and compliance based studies of legal authority. We also preview the twenty-two chapters in the volume. The book expands by 40% the special issue we published in Law and Contemporary Problems, adding a new introduction and conclusion, three new empirical chapters, six commentaries and a conclusion that reconsiders how context influences the authority of international courts.

d'Aspremont: Bypassing the Authority of International Law: The Virtue of Modern Self-Referentiality

Jean d'Aspremont (Univ. of Manchester - Law; Sciences Po - Law) has posted Bypassing the Authority of International Law: The Virtue of Modern Self-Referentiality (in Constructing Authority in International Law, G. Hernandez & G. Jokubauskaite eds., forthcoming). Here's the abstract:

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This chapter is certainly not the place to revisit the legacy of previous (re)turns to the question of authority of international law. More interesting for the sake of this book is the discussion of the very constraints from which international lawyers seek to escape when they venture into questions of authority. In other words, what is it precisely that drives the above mentioned international lawyers’ therapeutic turn to authority? It is argued in this chapter that inquiries into the authority of international rules, international rule-making processes, and international institutions are commonly meant to battle a specific construction that represses questions of authority, namely the self-referentiality of the main doctrines of international law. Focusing on the main doctrines of international law around which international legal arguments about the making, unmaking and functioning of international obligations are articulated (sources, interpretation, responsibility, personality, statehood, succession, jurisdiction, territory, etc), this chapter shows that the liberal structure inherited from the Enlightenment stifles the question of authority by virtue of a system of self-referentiality. According to the argument made here, the question of authority is more specifically bypassed by virtue of a self-referential construction according to which fundamental doctrines of international law invent their own origin and regulate their own functioning. It is because the foundational question of authority is ironed out by such liberal self-referentiality that international lawyers recurrently feel a cyclic need to embrace questions of authority and venture — albeit temporarily — outside their daily dichotomic world.

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After sketching out the self-referentiality at the heart of international lawyers’ understanding of the formation and functioning of fundamental doctrines (1), this paper shows how the self-referentiality around which international lawyers’ understanding of the formation and functioning of fundamental doctrines is articulated produces the experience of a sense of constraint towards these fundamentals doctrines and allows a bypass of questions of authority (2). This paper then argues that the bypass of authority by virtue of self-referentiality constitutes a modern construction inherited from the Enlightenment (3). A concluding section discusses the possibility and adequacy of doing away with self-referentiality through questions of authority (4).

Madsen: Bolstering Authority by Enhancing Communication: How Checks and Balances and Feedback Loops Can Strengthen the Authority of the European Court of Human Rights

Mikael Rask Madsen (Univ. of Copenhagen - Law) has posted Bolstering Authority by Enhancing Communication: How Checks and Balances and Feedback Loops Can Strengthen the Authority of the European Court of Human Rights (in Allocating Authority, Joana Mendes & Ingo Venzke eds., forthcoming). Here's the abstract:

This paper analyses the question of relative authority and separation of powers with regard to the European Court of Human Rights (ECtHR). Focus is on the specific processes that might perpetuate and even bolster authority in complex regimes of global governance such as the ECtHR. Building on a previous work on the variable authority of ICs, and notably how contexts shape that authority, the paper is particularly interested in how inter-institutional processes and feedback mechanisms operate in practice and create workable ensembles of institutions exercising relative authority. The chapter’s empirical analysis focuses on four instances of law-politics interfaces in the evolution of the ECtHR. It highlights particular moments in which the authority of the ECtHR has been challenged and how such challenges have either been overcome or resulted in insolvable collusions between the Court and the Member States. The analysis concludes that the current informal system of checks-and-balances in some cases is insufficient for avoiding clashes over the Court’s interpretations of the ECHR. Against the background of the empirical analysis, the paper develops original proposals for institutional reform that might help create better feedback loops in the area of European human rights. These include a different role for the Committee of Ministers, a greater participation and transparency with regard to proceedings before the Court, and the introduction of a form of appeals system. All of these proposals can be introduced in the current system with only minor amendments to the existing framework.

Call for Papers: "Authority" in International Dispute Settlement

The Lauterpacht Centre for International Law at the University of Cambridge has issued a call for papers for a workshop for young scholars and Ph.D. candidates on "'Authority' in International Dispute Settlement," to be held on March 20, 2017. Here's the call:

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Young scholars and PhD candidates interested in empirical methods in international law are invited to submit expressions of interest for this workshop on the use of "authorities" in international dispute settlement. The workshop will not involve the publication of papers, although works-in-progress will be discussed by the participants. By bringing together young and established scholars using empirical methods, this workshop aspires to provide inspiration and practical guidance.

The workshop, funded by the British Academy, is organised by Dr Michael Waibel and will take place on 20 March 2017, at the Lauterpacht Centre for International Law at the University of Cambridge. Expressions of interest shall be sent to Damien Charlotin ([email protected]) by 10 January 2017 with a description of your research interests and how they relate to the theme of the workshop, plus a CV with a list of publications. The organizer will let applicants know by 20 January 2017 about the outcome of their application.

Jemielniak, Nielsen, & Olsen: Establishing Judicial Authority in International Economic Law

Joanna Jemielniak (Univ. of Copenhagen - Law), Laura Nielsen (Univ. of Copenhagen - Law), & Henrik Palmer Olsen (Univ. of Copenhagen - Law) have published Establishing Judicial Authority in International Economic Law (Cambridge Univ. Press 2016). Contents include:

• David A. Gantz, Assessing the impact of WTO and regional dispute resolution mechanisms on the world trading system
• Chang-fa Lo, Establishing permanent regional good offices for trade disputes in Asia
• Amos Saurombe, African regional judiciaries and their jurisprudence in trade law matters
• Greg Tereposky & Laura Nielsen, Coordinated actions in international economic law as illustrated by investment treaty arbitration and World Trade Organization (WTO) disputes
• Joost Pauwelyn, Minority rules: precedent and participation before the WTO Appellate Body
• Krzysztof J. Pelc, The welfare implications of precedent in international law
• Anton K. Schnyder & Stefanie Pfisterer, Features of trade law adjudication and their impact on the development of legal concepts and precedents
• Krista Nadakavukaren Schefer, Judicial ethics in international economic law: what standards of independence and impartiality apply to arbitrators and panelists?
• Ingo Venzke, Judicial authority and styles of reasoning: self-presentation between legalism and deliberation
• Joanna Jemielniak & Laura Nielsen, Global citizens in international commercial arbitration and WTO dispute resolution
• Benedikt Pirker, Proportionality analysis and international commercial arbitration: the example of public policy and domestic courts

Çalı: The Disciplinary Account of the Authority of International Law: Does It Stand Firm against Its External Critics?

Başak Çalı (Koç Univ. - Law) has posted an ESIL Reflection on The Disciplinary Account of the Authority of International Law: Does It Stand Firm against Its External Critics?

Symposium: The Variable Authority of International Courts

The latest issue of Law and Contemporary Problems (Vol. 79, no. 1, 2016) focuses on "The Variable Authority of International Courts." Contents include:

• Karen J. Alter, Laurence R. Helfer & Mikael Rask Madsen, How Context Shapes the Authority of International Courts
• James Thuo Gathii, Variation in the Use of Subregional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice
• Claire Moore Dickerson, The OHADA Common Court of Justice and Arbitration: Exogenous Forces Contributing to Its Influence
• Salvatore Caserta & Mikael Rask Madsen, Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies
• R. Daniel Kelemen, The Court of Justice of the European Union in the Twenty-First Century
• Mikael Rask Madsen, The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash
• Alexandra Huneeus, Constitutional Lawyers and the Inter-American Court’s Varied Authority
• Emilia Justyna Powell, Islamic Law States and the Authority of the International Court of Justice: Territorial Sovereignty and Diplomatic Immunity
• Gregory Shaffer, Manfred Elsig & Sergio Puig, The Extensive (But Fragile) Authority of the WTO Appellate Body
• Leslie Vinjamuri, The International Criminal Court and the Paradox of Authority
• Ron Levi, John Hagan & Sara Dezalay, International Courts in Atypical Political Environments: The Interplay of Prosecutorial Strategy, Evidence, and Court Authority in International Criminal Law

Çali: The Authority of International Law: Obedience, Respect, and Rebuttal

Basak Çali (Koç Univ. - Law) has published The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford Univ. Press 2015). Here's the abstract:

The question of the authority of international law over domestic authorities and the duties of state officials to international law are fundamental concerns in international legal theory and practice. The Authority of International Law: Obedience, Respect, and Rebuttal addresses these concerns by reframing the present accounts of authority in international law, construing its authority as imposing three different layers of duties on domestic officials: the duty to obey, the duty to respect, and the duty to rebut.

The book provides an original interpretation of this authority - one that is not tied to prior state consent or domestic constitutional frameworks. It offers a nuanced account, arguing that whether or not international law is obeyed within any given situation depends on the type of duty it imposes on the state, and that duty's normative force. There is no strict framework in which international law always trumps domestic law or vice versa. Instead, Çali presents a realistic account of when international law has absolute authority, and when it can afford a margin of appreciation to states.

The Authority of International Law contributes to existing debates by considering the gap between consent-based jurisprudential theories of authority and self-interest and identity-based theories of compliance, and by considering monism, dualism, and normative pluralism as theories for addressing authority competition between domestic legal orders and international law.

Gostin, Sridhar, & Hougendobler: The Normative Authority of the World Health Organization

Lawrence O. Gostin (Georgetown Univ. - Law), Devi Sridhar (Univ. of Edinburgh - Centre for Population Health Sciences), & Daniel Hougendobler (Georgetown Univ. - Law) have posted The Normative Authority of the World Health Organization (Public Health, forthcoming). Here's the abstract:

The World Health Organization (WHO) was born after the devastation of World War II, as a normative agency endowed with unprecedented constitutional powers. But even as it has achieved stunning successes, such as the eradication of smallpox, it has failed to live up to the exalted expectations of the postwar health and human rights movement e exemplified most recently by its inadequate response to the Ebola epidemic. Our aim is to offer innovative ideas for restoring the Organization to its leadership position by exercising its normative authority, even as it faces a crowded and often chaotic global health architecture. Before doing so, it will be helpful to summarize the main tensions the Organization faces in today's global health landscape.