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New Centre of Excellence – international law:

Seeking to establish ground rules for international court system

The growing plurality of international courts increases the need to establish a set of ground rules. A dynamic group of Oslo-based legal scholars, political scientists and political theorists in a recently established Centre of Excellence are looking to assist in this process.

There are several dozen international courts and tribunals (ICTs) of various kinds in the world today. After the fall of the Berlin wall, their numbers grew dramatically. Increasingly, sovereign states have relinquished their authority in crucial areas such as human rights, investment, trade and criminal law to such international bodies.

Photo: UiO Andreas Føllesdal (Photo: UiO) Are the courts legitimate?

“There are good reasons why disputes in various international areas such as these are heard by international bodies. The proliferation of such courts is related to increased globalisation,” says Andreas Føllesdal, a professor of philosophy.

“It is critical that these courts function as intended and are perceived to be legitimate. An important question is whether the courts safeguard fundamental values such as predictability and protection against stronger parties,” he adds. Dr Føllesdal is heading up the Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order (PluriCourts) under the Norwegian Centres of Excellence (SFF) scheme. After the first period Geir Ulfstein, a professor of law, will take over.

Both men have been associated with the Norwegian Centre for Human Rights, a national institution affiliated to the University of Oslo. In 2010 they received a European Research Council (ERC) Advanced Grant to study the origins, functions, effects and legitimacy of courts of human rights. Now they are expanding their research into a wider range of areas.

Why no environmental issues?

“It is striking that the courts cover some but not all areas with problems of a global nature. Why, for example, are environmental issues not covered by any separate international court? We will study international practice in the environmental sphere in the context of human rights, trade, investment and criminal law, areas which are covered by courts,” says Dr Ulfstein.

The proliferation of the ICTs raises many questions that the centre is seeking to answer. How do these independent courts function? Do they bind states too much or too little? Are they open to criticism? Is it proving possible to maintain the difficult balance between the courts’ independence and democratic control? How can states or others parties change the course of the courts when there are no international democratic institutions like those found at the national level?

Photo: Salvatore Laporta/Ap CONFLICT: The Italian government wanted to retain the crucifixes in classrooms even though the European Court of Human Rights found this to be in violation of human rights. The Court later reversed its decision (Photo: Salvatore Laporta/Ap)

Generating growing debate

“Our point of departure is the criteria for the exercise of judicial power that applies to national courts. We will be exploring whether these criteria for the legitimate exercise of power also apply to international courts,” says Dr Føllesdal.

The ICTs are generating a growing debate both in Norway and internationally. The Norwegian debate has focused in particular on whether the human rights courts have too much power. For instance, Norway has held back on endorsing new international complaint schemes related to the rights of children and people with disabilities.

“Norway no longer necessarily agrees to endorse all the courts that are established. I think it is healthy that there is more debate on this topic. It is important to explore all the consequences of an endorsement before a decision to participate is made,” says Dr Ulfstein.

Anarchy among courts

As the number of ICTs grows, so does the potential for conflict between them. Since there is no superior court with decision-making authority over the others, there is a danger of anarchy among the courts, which would affect the international community.

“The diversity of courts begs the question of how they can be organised in the most expedient manner. Is a superior decision-making body needed? If so, should the International Court of Justice in The Hague be designated as such? Or should the system be based on agreement among the courts through dialogue? We want to clarify the criteria on which such an assessment should be based,” notes Dr Føllesdal.

Photo: UiO Geir Ulfstein (Photo: UiO) The centre will generate research-based ideas on how the ICTs could be reformed. Consequently, dialogue with the bodies that reform the courts internationally will be one of the centre’s key activities.

“We will also cooperate with judges, courts, the public administration and organisations such as the Norwegian Bar Association and establish cooperation with NGOs (non-governmental organisations). It is vital that the actors who are involved in, or are affected by, the courts’ activities in various ways gain a better understanding of the interaction between the courts at the national and international levels," says Dr Ulfstein.

Global landscape in flux

The centre’s research is a response to the growing interest in the values and norms on which the courts are based. The complex issues to be explored require extensive interdisciplinary cooperation. Political theorists and political scientists will supplement the perspectives of legal scholars who have conducted research in international law. The centre also has a large international network in these subject areas.

“International courts are constantly changing and operate in a landscape in continual flux. The global power relationship is shifting towards the east. To address this, there is enormous value in being able to follow the international courts over time, which the long-term SFF allocation will enable us to do,” concludes Dr Ulfstein.

Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order (PluriCourts)
  • Objective: To analyse and assess the national and international legitimacy of the plurality of international courts and tribunals (ICTs).
  • Centre director: Andreas Føllesdal, to be replaced by Geir Ulfstein, both of the University of Oslo
  • Partners: University College London; Max Planck Institute for Comparative Public Law and International Law; Goethe Universität Frankfurt; Université Paris I (Sorbonne); Social Science Research Center Berlin; University of Amsterdam; Weatherhead Center for International Affairs, Harvard University; European University Institute in Florence
  • Annual allocation from the Research Council: NOK 17.5 million
  • Total person-years at start-up: 3.5; post-doctoral and doctoral research fellows and approximately 4 visiting researchers will be hired
  • No. of doctoral degrees planned: 8, plus those funded by other sources; 9 post-doctoral research fellows

 

Written by:
Christian Lund/Else Lie. Translation: Connie Stultz/Carol B.Eckmann
Published:
11.09.2013
Last updated:
19.09.2013