Title
Authority, Legitimacy and Participation in International Legal Institutions: The Case of the Milosevic Trial
Abstract
Legal philosophers sometimes claim that what distinguishes legal systems from other normative systems is that they claim legitimate authority. However, this jurisprudential claim is often attacked as opaque and empirically unsubstantiated. The article, which is part of a larger project entitled "Law as Authority: A Concept of International Law", provides an empirical starting point from which this and other jurisprudential questions can then be explored. It does so by studying, using an ethnomethodological approach, the means through which international legal institutions socially construct their authority and communicate their claim of legitimacy. This is achieved by applying an Interactionist (dramaturgical) framework to an examination of the phenomenology of one test-case: the proceedings of the Milosevic trial at the International Criminal Tribunal for the Former Yugoslavia (the ICTY).
Specifically, the article traces the textual and contextual ways in which the ICTY communicates its claim of legitimate authority by way of administering transitional justice on an international, rather than a national, level. It then goes on to argue that what is in fact attempted, and perhaps achieved, through internationalizing the trials is the internationalization of the process itself. The subject of the transition from an illiberal and illegitimate regime to a liberal and legitimate one is not in fact the Former Yugoslavia, but the 'international community' itself. The rule of law that the ICTY seeks to vindicate is not only law as such, and not necessarily the law of the former-Yugoslavia, but the rule of international law. More generally, the fundamental social change that is actually attempted is a shift towards a quasi-monist international state-like governance apparatus. Some consequences to the actual legitimacy of the ICTY, and other legal institutions, are then pointed out in conclusion.
Thus, the article makes three contributions. First, is a contribution to international law: the article is the first to give a socio-psychological analysis of the effects of the ad hoc international criminal tribunals. This, in turn, is a two pronged contribution: (a) a substantive argument about the ICTY’s appropriation of a crucial social process: the process of transition; (b) a methodological argument: debates on institutional design in international law must take into account the interactionist considerations discussed herein. Both the substantive and the methodological aspects bring a completely new angle to all current debates about the ‘legitimacy crisis’ and ‘democratic deficit’ of international legal institutions. Second, is a contribution to sociology of law: the article is the first and only ethnographic analysis of the international courts. It is also one of the few ethnographic studies of courts in general from an interactionist perspective and as such is a contribution to the growing filed of interactionist study of legal institutions. Third, is a contribution to jurisprudence (legal philosophy and legal theory): the argument removes one of the main objections of the natural law approach (notably Prof. Dworkin) to positivist theories of law and defends a ‘social fact thesis’ which is at the heart of legal positivism.
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