Editor’s Note: This is the third of a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . The earlier posts in the series can be found here and here.
Buried toward the end of The Rise of International Criminal Law is a discussion of communities of authority and interpretation in international law and ICL. Neither Kapur nor Roth raises it, for the very good reason that it is buried toward the end in a couple of paragraphs. As time has gone on since publication of the article, however, I have gradually become convinced that a central, unavoidable question in all this is one I have posed before in the context of IHL – “Who owns international law?” Who has interpretive authority over it?
It’s contested, and always has been. That is a historical constant, and so in writing the original article I mentioned it but did not follow it up. But as I consider ICL and its social claims more deeply, I’m convinced that the growth of the tribunal structure internationally and the deeper involvement of national tribunals through various forms of universal jurisdiction – from Garzon to the ATS, as it were – has in fact introduced a new dynamic in the otherwise perennial argument over interpretive authority in international law. It is a dynamic of fragmentation.
The reason, I think, is the nature of tribunals and judgments as they become widespread enough to become a real source of authority and interpretation. The nature of courts, and judgments, is that they gain in legitimacy and authority, on their own terms, by asserting themselves and their authority. But they do that in part by doing self-referentially – a sort of bootstrapping of legitimacy. Read the rest of this entry…