Global Perspectives on (Public)

Administration and (Public) Authority

Global Public Administration
CEU Budapest, Department of Legal Studies
Cindy Wittke
2015/2016 Academic Year

Session 13+14
GLOBAL, TRANSNATIONAL, NATIONAL
THE US SUPREME COURT AND THE
KIOBEL CASE
IN WHOSE NAME? THE AUTHORITY OF
INTERNATIONAL COURTS IN A GLOBAL
WORLD
Research Outlines

Session 13+14
IN WHOSE NAME? THE AUTHORITY OF
INTERNATIONAL COURTS IN A GLOBAL
WORLD
Questions:
How is international public authority framed/
defined?
Which global role do some courts play
beyond their mandate to settle legal
disputes?
3

Session 13+14
Would you agree that courts are global
governance institutions or actors?
Do you see common topics, questions and
issues addressedwhen looking back on
Global Administrative Law, Orford's
discussion of public authority and our
discussions in thesessions on Kiobel vs.
Royal Dutch Shell?

Session 13+14
Traditional View on ICT
One- dimensional
Only function: settling disputes
Deficits and problems:
Underrates problems in the legitimation of
international courts
Blockades the realization of international
adjudications full potential
Need for a new understanding in times of global
governance
5

The Functions of International Courts

The Functions of International Courts

not the only

function, but the
most salient
function
the singular
function of dispute
settlement is
misleading

The Functions of International Courts

requires
enforcement
problem in IR: no
coercive measures
other mechanisms
(e.g. noncompliance loss
of reputation)
international
courts perform a
critical function in
signalling credible

The Functions of International Courts

development of
international law
add normative
substance
Contribution to
concrete case &
Beyond a certain
case!
authoritative
references points
Judicial law making
effect on legal
discourse

The Functions of International Courts

vertical dimension:
control of domestic
authority
horizontal dimension:
control of authority
exercised at the
international level
move into the space of
political decisionmaking
review by an
independent
institution is one of the

Functions in light of basic understandings

3 broader normative understandings:

1. International courts as instruments of the parties.

2. International courts as organs of a value- based international

community.

3. International courts as institutions of specific legal regimes

International courts as instruments of

the parties
settlement of disputes in a state- centred
world order
decisions in the name of the states that
created them
weak institution without compulsory
jurisdiction
no real role beyond the settlement of a
dispute

International courts as organs of a

value- based international
community
task to protect the communitys core values
and interests
decisions in the name of the international
community
judicial practice beyond the settlement of
disputes
interests of the community

International courts as institutions

of legal regimes
institutions of specific legal regimes
Act in the name of the legal regime
paradigm developed in the wake of
globalization
new institutions reach further: complex
system created by globalization need
for international regulation

How can we understand the authority of

international Courts?
Authority = ability to establish content- laden reference
points that participants in legal discourse can hardly
escape
between coercion by force and persuasion through
argument

Contours of Authority

 minimal degree of voluntary recognition

contrast to coercion by force
Max Weber: distinction between
authority and power

When exactly turns a contract into an authority

relationship?
an addressee of authority can be
constrained
ability to set up laws that are binding upon
themselves

 standard mechanism that creates authority

why do principals delegate authority? first
text by Venzke
Delegation is the typical starting point of ICTs
authority, but the legal discourse determines
how the authority grows.

Discursive construction of authority

Authority emerges when the broader context holds that
B should do X because A said so.
Not only a dyadic relationship
Authority as a product of discursive practices in a
dynamic
context
Social belief in its legitimacy
Discursive construction of authority is important in the
context of law- making.

Outlook:

Increasing authority of courts; International

courts should be seen as actors!
multifunctional perspective
authority between coercion by force and
persuasion through arguments
the discursive construction stabilizes and
supplements ICTs authority.