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Reaction –– Themis and Dike in the International Arena: Comments on von Bogdandy's and Venzke's “Democratic Legitimation of International Judicial Lawmaking”
Published online by Cambridge University Press: 06 March 2019
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The Max Planck Institute's research on international judicial institutions as lawmakers, which was published in May as a special issue of the German Law Journal, is an important contribution to the analysis of one of the most complex and controversial legal issues in our epoch. In the last two decades, international adjudication has become a recurrent source of legal concern, and sometimes even a source of public concern.
- Type
- Developments
- Information
- German Law Journal , Volume 12 , Issue 11: Special section - The Hartz IV Case and the German Sozialstaat , 01 November 2011 , pp. 2059 - 2070
- Copyright
- Copyright © 2011 by German Law Journal GbR
References
1 Beyond Dispute: International Judicial Institutions as Lawmakers, 12 German L.J. 5 (2011) (Armin von Bogdandy & Ingo Vetzke eds.).Google Scholar
2 See Marrti Koskenniemi, The Ideology of International Adjudication and the 1907 Hague Conference, in Topicality of the 1907 Hague Conference 152 (Yves Daudet ed., 2008). See also Matthew Parish, Mirages of International Justice: The Elusive Pursuit of a Transnational Legal Order (2011) (arguing that there is not a “system” of courts and that, at worst, they obscure the exercise of political power).Google Scholar
3 See Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, 68 Law & Contemp. Probs. 15, 21 (2005) (observing that the states are increasingly bound by external norms, often of administrative character).Google Scholar
4 But see Robert O. Keohane, Andrew Moravcsik & Anne-Marie Slaughter, Legalized Dispute Resolution: Interstate and Transnational, 54 Int'l Org. 457, 457 (2000) (holding that “instead of resolving disputes through institutionalized bargaining, states choose to delegate the task to third-party tribunals”).Google Scholar
5 See Yuval Shany, Regulating Jurisdictional Relations between National and International Courts 1297, 1302(2007) (considering judicial methods for solving conflicts of jurisdiction, such as comity); see generally Sabino Cassese, I tribunali di Babele (2009) (arguing that international judicial institutions are strengthening the connections between global regulatory regimes).Google Scholar
6 Vetzke, Ingo, Making General Exceptions: Developing Article XX GATT into Standards for Domestic Regulatory Policy, 12 German L.J. 1111 (2011).Google Scholar
7 Bogdandy, Armin von & Vetzke, Ingo, Beyond Dispute: International Judicial Institutions as Lawmakers, 12 German L.J. 979 (2011) [hereinafter Bobdandy & Vetzke, Beyond Dispute].Google Scholar
8 Bogdandy, Armin von & Vetzke, Ingo, On the Democratic Legitimation of International Judicial Lawmaking, 12 German L.J. 1341 (2011) [hereinafter Bobdandy & Vetzke, On the Democratic].Google Scholar
9 See id. at 1343 (affirming that functional theories “can no longer convincingly settle legitimatory concerns”).Google Scholar
10 Bogdandy, & Vetzke, , Beyond Dispute, supra note 7, at 979 n.1 (specifying that that a broad understanding of the term “court” is used, covering both arbitral tribunals and institutions fulfilling a court-like function such as WTO bodies).Google Scholar
11 Reactions to judicial overreach took place, for example, after the WTO Appellate Body's decision in Shrimps. See Report of the Appellate Body, WT/DS58/AB/R (12 Oct. 1998). Interestingly, Armin von Bogdandy criticized that decision, holding that the AB had created law, thus threatening the delicate balance between political sources and other ones. Armin von Bogdandy, Law and Politics in the WTO: Strategies to Cope with a Deficient Relationship, in Max Planck Yearbook of United Nations Law 609, 613 (2001); see also Robert Howse, The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environment Debate, 27 Colum. J. Envtl. L. 489, 514 (2003) (criticizing the “illegitimate judicial activism”).Google Scholar
12 Bogdandy, & Vetzke, , Beyond Dispute, supra note 7, at 983.Google Scholar
13 Bogdandy, & Vetzke, , On the Democratic, supra note 8, at 1341.Google Scholar
14 See id. at 1343 (arguing that “not all lawmaking as such is ultra vires,” but “not all lawmaking falls within a court's competence”).Google Scholar
15 Among the vast literature regarding this topic, Réné Lécourt, Le gouvernement des juges aux Etats-Unis (1935) reveals the traditional French opposition to judicial lawmaking, after the excesses of the ancien régime. Google Scholar
16 For critical remarks, see Hjalte Rasmussen, Between Self-Restraint and Judicial Activism: A Judicial Policy for the European Court, 13 Eur. L. Rev. 28 (1988). For a defense of the ECJ, see Mauro Cappelletti, Is the European Court of Justice “Running Wild”?, 12 Eur. L. Rev. 3 (1987). For a retrospective, see generally Alec Stone Sweet, The Judicial Construction of Europe (2004). More recently, judicial lawmaking by supranational courts has been considered illegal by the German Constitutional Court, in some circumstances. See Bogdandy & Vetzke, On the Democratic, supra note 8, at 1345.Google Scholar
17 See Dworkin, Ronald, The Judge's New Role: Should Personal Convictions Count?, 1 J. Int'l Crim. Just. 4, 10 (2003) (arguing that we must not simply ask whether some judicial power is undemocratic according to one traditional understanding of that democracy is but, rather, whether it is undemocratic according to the best understanding of that ideal, which does not equate democracy with majority rule in itself).Google Scholar
18 See Bogdandy, & Vetzke, , On the Democratic, supra note 8, at 1343.Google Scholar
19 Although the authors focus on liberal democracies, their broader argument is that in any case the legitimacy of international decisions flows from the consent of the states’ parties to the dispute. See id. at 1341.Google Scholar
20 For an accurate discussion, see Tom Ginsburg, Bounded Discretion in International Judicial Lawmaking, 45 Va. J. Int'l L. 631, 672 (2004) (showing convincingly that bounded discretion is simply a myth).Google Scholar
21 For a masterly analysis, see generally John M. Kelly, A Short History of Western Legal Thought (1992) and Alessandro Giuliani, Giustizia ed Ordine Economico (1997) (arguing that the medioeval conception of justice influenced Adam Smith's philosophical writings).Google Scholar
22 For the distinction between rules and decisions, see generally Frederick Schauer, Playing With Rules (1999).Google Scholar
23 Following an authoritative theory, I intend argumentation as aiming “at securing the adherence of those to whom is addressed, it is, in its entirety, relative to the audience to be influenced.” See Chaim Perelman & Lucie Olbrechts-Tyteca, Traité de l'argumentation: Nouvelle rethorique 19 (1958).Google Scholar
24 For further analysis of the earlier case law, see generally Bruce Ackerman, Before the Next Attack (2005).Google Scholar
25 See Brennan, William J., Jr., Construing the Constitution, 19 U.C. Davis L. Rev. 1, 2 (1985–86).Google Scholar
26 Aharon Barak, Judicial Discretion 40 (1989) (calling this the “objectivity test”).Google Scholar
27 For further remarks, see Sorace, Domenico, Compensation for Expropriation, in Italian Studies in Law: A Review of Legal Problems 83 (Alessandro Pizzorusso ed., 1992).Google Scholar
28 See Scordino v. Italy (No. 3), 2007-__ Eur. Ct. H. R. __. (holding that indirect expropriation had infringed the “law”, as individuated by Article 1 of the First additional protocol; another ground of unlawfulness was the retroactive application of new standards).Google Scholar
29 See judgments n. 347 and 348 of 2007 of the ICC, commented by Silvia Mirate, A New Status for the ECHR in Italy, 15 Eur. Pub. L. 89 (2009) (emphasizing the quasi-constitutional status of the ECHR). For a broader analysis of the reception of ECHR in the Italian legal order, see Mercedes Candela Soriano, The Reception Process in Spain and Italy, in A Europe of Rights: The Impact of the ECHR on National Legal Systems 393, 407 (Helen Keller & Alec Stone Sweet eds., 2008) (observing that the Italian Constitutional Court uses the Convention as a guide for an evolutionary interpretation of rights).Google Scholar
30 See generally John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980) (conceiving the judiciary as a counterailing power, which is essential in order to preserve the rights of individuals and minorities).Google Scholar
31 Bogdandy, & Vetzke, , On the Democratic, supra note 8, at 1348 (considering Kelsen's theories).Google Scholar
32 See id. at 1361.Google Scholar
33 See generally Flavio Lopez de Onate, La certezza del diritto (1941).Google Scholar
34 Bogdandy, & Vetzke, , On the Democratic, supra note 8, at 1350.Google Scholar
35 For this metaphor, see Robert O. Keohane & Joseph S. Nye Jr., The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy, in Efficiency, Equity, Legitimacy: The Multilateral Trading System at the Millennium 264, 227 (Roger B. Porter et al. eds., 2003).Google Scholar
36 See generally Albert Venn Dicey, Lectures on the Relation Between Law and Public Opinion in England (1905).Google Scholar
37 See generally Robert Dahl, On Democracy 115 (1998). As Albert Venn Dicey, the major Victorian constitutional lawyer, observed at the beginning of the twentieth century, parliaments often do little more than codify standards that already have emerged within society. See Albert Venn Dicey, Lectures on the relations Between Law and Public Opinion in England During the Nineteenth Century 3 (1914, 2nd ed.) (observing that “there exist many communities … that are influenced by habits.”).Google Scholar
38 For this thesis, see Robert O. Keohane, Stephen Macedo & Andrew Moravcsik, Democracy-Enhancing Multilateralism, 63 Int'l Org. 1 (2009).Google Scholar
39 Bogdandy, & Vetzke, , On the Democratic, supra note 8, at 1341.Google Scholar
40 See Falk, Andrew L. & Strauss, Richard, On the Creation of a Global Peoples Assembly, 36 Stan. J. Int'l L. 191 (2000).Google Scholar
41 Edmund Burke, Reflections on the Revolution in France 13 (1790).Google Scholar
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