INTERNATIONAL COURTS AND TRIBUNALS SERIES General Editors: Ruth Mackenzie, Cesare P.R. Romano, and Philippe Sands In Whose Name? INTERNATIONAL COURTS AND TRIBUNALS SERIES General Editors: Ruth Mackenzie, Cesare P.R. Romano, and Philippe Sands A distinctive feature of modern international society is the increase in the number of international judicial bodies and dispute settlement and implementation control bodies; in their case-loads; and in the range and importance of the issues they are called upon to address. These factors reflect a new stage in the delivery of interna- tional justice. The International Courts and Tribunals series has been established to encourage the publication of independent and scholarly works which address, in critical and analytical fashion, the legal and policy aspects of the functioning of international courts and tribunals, including their institutional, substantive, and procedural aspects. In Whose Name? A Public Law Theory of International Adjudication Armin von Bogdandy and Ingo Venzke Translated from the German by Thomas Dunlap and revised by the authors •• 1 1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Armin von Bogdandy & Ingo Venzke 2014 The moral rights of the authors have been asserted First Edition published in 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. 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Acknowledgements The present book explores the phenomenon of the exercise of public authority by international courts. It aims at a strong conceptual grasp, a nuanced political–phil- osophical assessment, and the development of the pertinent law. It forms part of a larger research project on that matter, the first phase of which focused on the most evident form of international public authority, namely international territo- rial administration. The second phase dealt with the manifold exercise of public authority by international bureaucracies. The book at hand now concludes the third phase, which zoomed in on international courts’ public authority. We thank Simon Hentrei, Matthias Kottmann, and Frauke Sauerwein for their excellent support in finalizing the book. Not only did they complete the biblio- graphical data with the help of Friederike Ziemer, but they also helped strengthen many passages through their critique. We are also grateful for the suggestions we received from Matthias Goldmann, Marc Jacob, András Jakab, Christoph Krenn, Christoph Möllers, Karin Oellers-Frahm, Mateja Steinbrück Platise, Stephan Schill, Dana Schmalz, and Nele Yang. We further tested arguments of the book in the framework of events at the University of Amsterdam, the Hebrew University in Jerusalem, the University of Copenhagen, New York University School of Law, the École de Droit de la Sorbonne, the Universities of Tel Aviv and Zurich, Jawaharlal Nehru University in New Delhi, and Yale Law School. The Straus Institute for the Advanced Study of Law & Justice and the Amsterdam Center for International Law provided the framework for completing the German manuscript. Thomas Dunlap translated it into English before we revised it for publication. We thank the anonymous review- ers for their efforts and appreciate OUP’s dedicated editorial work. Amsterdam and Heidelberg in March 2014 Unless noted otherwise, translations from non-English references have been provided by Thomas Dunlap. Furthermore, earlier versions of parts of our book have been published as articles or book chapters, especially: ‘In Whose Name? An Investigation of International Court’s Public Authority and Its Democratic Justification’ (2012) 23 European Journal of International Law; ‘Beyond Dispute: International Judicial Institutions as Lawmakers’ (2012) 12 German Law Journal (2011); ‘On the Democratic Legitimation of International Judicial Lawmaking’ (2011) 12 German Law Journal 1341; ‘On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority’ (2013) 26 Leiden Journal of International Law 49; ‘The Spell of Precedents: Lawmaking by vi • Acknowledgements International Courts and Tribunals’ in Karen Alter, Cesare Romano, and Yuval Shany (eds), The Oxford Handbook of International Adjudication (OUP 2014) 503; ‘International Judicial Institutions in International Relations: Functions, Authority and Legitimacy’ in Bob Reinalda (ed), Routledge Handbook of International Organizations (Routledge 2013) 461. By Armin von Bogdandy: ‘The European Lesson for International Democracy: The Significance of Articles 9 to 12 EU Treaty for International Organizations’ (2012) 23 European Journal of International Law 315; ‘How to Conceptualize the Democratic Legitimacy of International Courts’ (2013) 14 Theoretical Inquiries in Law 361. By Ingo Venzke: ‘The Role of International Courts as Interpreters and Developers of the Law: Working out the Jurisgenerative Practice of Interpretation’ (2011) 34 Loyola of Los Angeles International and Comparative Law Review 99; ‘Antinomies and Change in International Dispute Settlement: An Exercise in Comparative Procedural Law’, in Rüdiger Wolfrum and Ina Gätzschmann (eds), International Dispute Settlement: Room For Improvements (Springer 2012) 235; ‘Understanding the Authority of International Courts and Tribunals: On Delegation and Discursive Construction’ (2013) 14 Theoretical Inquiries in Law 381. Table of Contents Table of Cases xi Table of Instruments xxiii List of Abbreviations xxxi 1. Agenda and Objectives 1 A. Framing the Problem 1 B. New Basic Concepts for International Courts 5 1. Multifunctionality 5 a) Dispute settlement 9 b) Stabilization of normative expectations 10 c) Law-making 12 d) Control and legitimation 14 2. The exercise of public authority 17 3. Democracy 18 C. Three Objections, Three Responses 21 1. A study of positive law or of normative theory? 21 2. An excessively broad concept of what constitutes a court? 23 3. Eurocentrism? 26 2. Basic Conceptions of International Courts 28 A. Courts as Instruments of Dispute Settlement 29 1. International courts in a state-centric world order 29 2. The cautious International Court of Justice 36 3. The Permanent Court of Arbitration and the Iran–United States Claims Tribunal 44 B. Courts as Organs of the Value-Based International Community 46 1. International courts as beacons of humanity 48 2. The daring ICJ 56 3. The European Court of Human Rights 63 4. International criminal courts 71 5. The International Tribunal for the Law of the Sea 76 C. Courts as Institutions of Legal Regimes 79 1. International adjudication for an interconnected world 79 2. The dispute settlement body of the WTO 85 3. Investment arbitration within the framework of the ICSID 90 D. Toward a Democracy-Oriented Theory 95 viii • Table of Contents 3. Key Elements of a Public Law Theory of Adjudication 101 A. The Public Authority of International Courts 101 1. The inevitability of judicial law-making 101 a) Adjudication and law-making 102 b) Law-making for the case at hand and for the future 105 c) Reasons: on the difference between legislation and judicial law-making 109 2. The exercise of international public authority 111 a) The concept of authority and the judicial decision 111 b) Precedents in international law 115 B. Specific Legitimation Problems of International Adjudication 119 1. Centralized judiciary and a decentralized legislative power 119 a) Institutional asymmetries 119 b) The treaty and the two-level game 122 c) Why case-law needs a legislator 123 d) Why Lauterpacht’s and Kelsen’s theory is outdated 125 2. The potential and dangers of the constitutionalist argument 128 a) The constitutionalist approach 128 b) A constitution-supplementing function? 131 c) Internal constitutionalization of international organizations 133 3. Fragmentation as a problem for democracy 134 C. A Concept of Democracy for International Adjudication 135 1. Problem and approach 135 2. Basic elements 140 a) The democratic subject 140 b) Dual democratic legitimacy 145 c) From self-government to political inclusion 146 3. The role of representative institutions for international courts 147 4.