Authors: von Bogdandy, Armin; Venzke, Ingo

Source: European Journal of International Law, Volume 23, Number 1, 2012 , pp. 7-41(35)

Publisher: Oxford University Press

Abstract:

Court judgments are epitomes of sovereign rule in many grand theoretical sketches. How may such judicial power be justified nowadays? Many domestic courts decide in the name of the people and thus invoke the authority of the democratic sovereign literally at the very beginning of their decisions. International courts, to the contrary, do not say in whose name they speak the law. This void sparks our driving question: how does the power of international courts relate to the principle of democracy? How can it be justified in accordance with basic premises of democratic theory? Our contribution develops an understanding of international adjudication as an exercise of public authority. It places emphasis on the asymmetry between international adjudication and parliamentary politics, unfolds legitimacy problems in the practice of international courts, and sketches how to interpret and develop international law in response. Procedural adjustments and politicization could react to power vested in decisions, elections might respond to the exercise of public authority, and systemic interpretation as well as a dialogue between courts may perhaps ease problems of fragmentation. We ultimately suggest that domestic constitutional organs will retain a critical role in relieving the international level from shouldering the whole legitimatory burden, contesting and accommodating authority in a normative pluriverse. We finally contend that the idea of transnational and possibly cosmopolitan citizenship should further guide the democratic justification of international courts public authority.

Document Type: Research article

DOI: http://dx.doi.org/10.1093/ejil/chr106

Publication date: 2012-01-01

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• The European Journal of International Law is firmly established as one of the world's leading journals in its field. With its distinctive combination of theoretical and practical approaches to the issues of international law, the journal offers readers a unique opportunity to stay in touch with the latest developments in this rapidly evolving area. Each issue of the EJIL provides a forum for the exploration of the conceptual and theoretical dimensions of international law as well as for up-to-date analysis of topical issues. Additionally, it is the only journal to provide systematic coverage of the relationship between international law and the law of the European Union and its Member States.

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