International Judicial Legitimacy最新文献

In the Name of the European Club of Liberal Democracies: On the Identity, Mandate and National Buffering of the ECtHR's Case Law 以欧洲自由民主俱乐部的名义:论欧洲人权法院判例法的身份、授权和国家缓冲

International Judicial Legitimacy Pub Date : 2020-07-08 DOI: 10.5771/9783748908661-271

A. Bogdandy, Laura Hering

引用次数: 0

Democratic Legitimacy and Non-Majoritarian Institutions: Reflections on the Functional and Democratic Legitimacy of International Adjudicative Bodies and Independent Regulatory Agencies 民主合法性与非多数主义机构:关于国际裁决机构与独立监管机构的功能与民主合法性的思考

International Judicial Legitimacy Pub Date : 2020-07-08 DOI: 10.5771/9783748908661-19

Alain Zamaria

{"title":"Democratic Legitimacy and Non-Majoritarian Institutions: Reflections on the Functional and Democratic Legitimacy of International Adjudicative Bodies and Independent Regulatory Agencies","authors":"Alain Zamaria","doi":"10.5771/9783748908661-19","DOIUrl":"https://doi.org/10.5771/9783748908661-19","url":null,"abstract":"The growing role of international adjudicative bodies, regulatory agencies driving public policies in areas such as telecommunications, health, energy and antitrust, and independent central banks running monetary policies are among the numerous signs of the empowerment of non-majoritarian institutions (“NMIs”) that carry out public policy without being accountable to the people through electoral and political processes.1 Despite being subject to tighter procedural rules, their development is increasingly raising questions of legitimacy as they are, just like “conventional” political authorities, blamed for not having delivered the promises that justified their creation. In In Whose Name? A Public Law Theory of International Adjudication, Armin von Bogdandy and Ingo Venzke reconsidered the basic purposes of one particular type of NMIs: international jurisdictions.2 Claiming that neither the original consent nor the functional goal is sufficient to settle their legitimacy and representation concerns convincingly, the authors tried to find universal standards for the democratic legitimacy of these institutions. The frontier between universalism and skepticism being thin,3 “any contribution that purports to be conceived as universal should be","PeriodicalId":101491,"journal":{"name":"International Judicial Legitimacy","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132949618","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

International Public Authority in Perspective: Comparing the Roles of Courts and International Organizations in Democratizing International Law 国际公共权威透视:法院与国际组织在国际法民主化中的作用比较

International Judicial Legitimacy Pub Date : 2020-07-08 DOI: 10.5771/9783748908661-109

A. N. Chaib

引用次数: 0

The Public Authority of the International Tribunal for the Law of the Sea 国际海洋法法庭的公共权力

International Judicial Legitimacy Pub Date : 2020-07-08 DOI: 10.5771/9783748908661-147

Lan N. Nguyen

{"title":"The Public Authority of the International Tribunal for the Law of the Sea","authors":"Lan N. Nguyen","doi":"10.5771/9783748908661-147","DOIUrl":"https://doi.org/10.5771/9783748908661-147","url":null,"abstract":"The 1982 United Nations Convention on the Law of the Sea (“UNCLOS” or “the Convention”) establishes a system for dispute settlement which constitutes an integral part of the Convention.1 As part of this system, States decided to establish a new, permanent tribunal specializing in law of the sea disputes, called the International Tribunal for the Law of the Sea (“ITLOS” or “the Tribunal”). The reason behind the creation of this new tribunal, alongside the International Court of Justice (ICJ) which had been the main forum for law of the sea disputes until then, was the high level of dissatisfaction on the part of many developing States with the ICJ following some of its controversial judgments.2 In other words, ITLOS came about as a demonstration of developing countries’ rejection of the ICJ’s authority. ITLOS was expected to be less conservative than the ICJ, more representative of various legal systems and the different regions of the world, as well as more accessible to non-State actors.3 As such, ITLOS was a timely response to the transformation of international society through globalization.4 The rationale behind the establishment of ITLOS and the fact that it is a permanent and specialized tribunal thus suggest that the Tribunal would become the judicial authority in the field of the law of the sea. I.","PeriodicalId":101491,"journal":{"name":"International Judicial Legitimacy","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114761201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

In Nobody's Name: A Checks and Balances Approach to International Judicial Independence 《以任何人的名义:国际司法独立的制衡方法

International Judicial Legitimacy Pub Date : 2020-07-08 DOI: 10.5771/9783748908661-45

Aida Torres Pérez

引用次数: 1

Re-Imagined Communities: The WTO Appellate Body and the Communitization of WTO Law 重构共同体:WTO上诉机构与WTO法律的共同体化

International Judicial Legitimacy Pub Date : 2020-07-08 DOI: 10.5771/9783748908661-203

G. Vidigal

{"title":"Re-Imagined Communities: The WTO Appellate Body and the Communitization of WTO Law","authors":"G. Vidigal","doi":"10.5771/9783748908661-203","DOIUrl":"https://doi.org/10.5771/9783748908661-203","url":null,"abstract":"Do the WTO Agreements create a mere multi-party contract, establishing bundles of bilateral legal relations that pairs of WTO Members remain free to shape and reshape on the basis of mutual consent? Or do they establish a community, a common legal system whose rules can only be modified pursuant to the legal regime’s collectively agreed procedures? By establishing a common institutional framework for the negotiation of trade relations, the WTO Agreements set up a forum in which decisions can be made collectively affecting all Members. On the other hand, the early years of the WTO saw a controversy with respect to the character of this forum, if merely an opportunity for bilateral bargains or a legal community whose rules condition the bilateral relations among the Members. This chapter argues that the Appellate Body’s reading of the function of adjudication and the institutional provisions of the WTO Agreements has resulted in a significant communitization of WTO law. Contrary to what some expected, this communitization did not result in a trade-focused regime. Instead, the approach adopted by the Appellate Body to the WTO Agreements puts on equal footing ‘trade’ and ‘non-trade’ goals. Trade-restrictive and even discriminatory measures are permissible as long as they find a justification in a non-trade goal that the community of Members determines to be legitimate. Crucially, the Appellate Body infers the views of this community not only from decisions of WTO bodies but also from other multilateral decisions and documents that, in its view, express a consensus or a common understanding regarding interpretations and legitimate non-trade concerns.","PeriodicalId":101491,"journal":{"name":"International Judicial Legitimacy","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114337460","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Dispute Settlement Function of the International Court of Justice in Croatia v. Serbia 国际法院在克罗地亚诉塞尔维亚案中的争端解决职能

International Judicial Legitimacy Pub Date : 2020-07-08 DOI: 10.5771/9783748908661-129

Cecily Rose

{"title":"The Dispute Settlement Function of the International Court of Justice in Croatia v. Serbia","authors":"Cecily Rose","doi":"10.5771/9783748908661-129","DOIUrl":"https://doi.org/10.5771/9783748908661-129","url":null,"abstract":"This chapter revisits a central premise of the public law theory of adjudication, namely, the view that the traditional understanding of courts as dispute settlers is inadequate. Admittedly, the function of international courts is larger than the settlement of disputes, and in this sense the traditional understanding is incomplete. International courts are undoubtedly more than “mere instruments of dispute settlement whose activities are justified by the consent of the states that created them and in whose name they decide”1. International courts can also act as law-makers, as promoters of global interests, as institutions within larger legal regimes, and also as institutions that exercise public authority. To an extent, the function of an international court is in the eye of the beholder, whether a judge, a scholar, a diplomat, or a member of the public. Each of these actors may perceive a given judgment or award through a particular lens. A judgment may strike a judge as an opportunity for the court to promote global interests, while an academic, observing from the outside, may primarily understand the same judgment as an instance of law-making. In light of the many ways in which international courts may be perceived, the dispute settlement account does indeed paint only part of the picture. This contribution argues, however, that the dispute settlement function of international courts merits a more nuanced account. Before we set aside the conception of courts as instruments of dispute settlement, in search of a more satisfactory explanation of the role that international courts are playing today, some of the finer aspects of their dispute settlement function ought to be detailed. This chapter therefore offers a critique of the 1.","PeriodicalId":101491,"journal":{"name":"International Judicial Legitimacy","volume":"336 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134518036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Courtspeak: A Method to Read the Argumentative Structure Employed by the International Court of Justice in its Judgments and Advisory Opinions 法庭语言:一种解读国际法院在其判决书和咨询意见中使用的辩论结构的方法

International Judicial Legitimacy Pub Date : 2018-01-22 DOI: 10.5771/9783748908661-91

Lorenzo Gasbarri

{"title":"Courtspeak: A Method to Read the Argumentative Structure Employed by the International Court of Justice in its Judgments and Advisory Opinions","authors":"Lorenzo Gasbarri","doi":"10.5771/9783748908661-91","DOIUrl":"https://doi.org/10.5771/9783748908661-91","url":null,"abstract":"It is intuitive that a persuasive judgment has more chances to achieve compliance, to set a precedent and to generally influence the authority of a court. It is more difficult to identify the writing tools that create its rhetorical structure. This paper defines and describes ‘courtspeak’ relying on the elements of the text that have been first identified by a group of literary theorists commonly known as “Russian Formalists”. First, the element called ‘Motivation’ explains how every argument must find its justification in the unity the judgment. Second, the distinction between the Fabula and the Syuzhet describes the role of the plot in the construction of the judgment. Third, the Heroes refer to the development of legal arguments as characters of the judgment. Fourth, the Voice is the element of the text that represents the point of view from which a judgment is narrated. Finally, the Theme of the judgment represents the sum of all the formal elements of the work and describes the literary existence of the judgment. This paper focuses on the relationship between text and context in order to describe the role of writing techniques in judicial argumentation and to propose a method to examine the argumentative structure of judgments issued by the International Court of Justice. The analysis of the text allows to dig out the contextual factors that are beyond the control of international judges and affect the authority of a court.","PeriodicalId":101491,"journal":{"name":"International Judicial Legitimacy","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130236370","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Not in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport 不要以我的名义!克劳迪娅·佩奇斯坦和体育仲裁法庭的后共识基础

International Judicial Legitimacy Pub Date : 2017-02-20 DOI: 10.2139/SSRN.2920555

A. Duval

引用次数: 8

In the name of the European Union, the Member States and/or the European citizens? 以欧盟、成员国和/或欧洲公民的名义?

International Judicial Legitimacy Pub Date : 1900-01-01 DOI: 10.5771/9783748908661-249

F. Clausen

引用次数: 0