Harmony and dissonance in international legal theory.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 3:00 p.m., Friday, March 25, by its moderator, Brian D. Lepard of the University of Nebraska College of Law, who introduced the panelists: Nienke Grossman of the University of Baltimore School of Law; John Linarelli of Swansea University School of Law; John Morss of Deakin University; and Helen Stacy of the Freeman Spogli Institute for International Studies, Stanford University. **

INTRODUCTORY REMARKS BY BRIAN LEPARD

Our panel today, in keeping with the theme of the Annual Meeting, is entitled "Harmony and Dissonance in International Legal Theory." The panel is sponsored by the International Legal Theory Interest Group of the American Society of International Law.

Our purpose here is to explore the role of harmony and dissonance in international legal theory. Our panelists will investigate such important, and broad, questions as: Can a single international legal theory provide the foundation for all subject areas addressed by international law, or do different areas require different theories? Should international legal theory accommodate diverse legal, cultural, gender, and religious viewpoints, and if so, how? What should be the role of pluralism among societies and among individuals in international legal theory? What role should democratic principles play in international law?

These issues are vigorously contested. But their resolution is not merely of theoretical interest. It affects the role that international law does, can, and should play in affecting decisions of states that in turn affect women, people of different religious and moral viewpoints, and members of minority groups.

I am delighted that we have assembled such a distinguished group of panelists. I have time to provide only a short introduction for each of them.

Nienke Grossman teaches international law at the University of Baltimore School of Law. Her research focuses on the increasing judicialization of international law, and the burgeoning use of international courts and tribunals to resolve disputes. Prior to joining the University of Baltimore School of Law as an Assistant Professor in August 2009, Professor Grossman was a Future Law Professors Fellow at Georgetown University Law Center, where she also received her LL.M.

Professor Grossman will examine whether the paucity of women judges on international courts and tribunals affects their legitimacy. She will use this examination as an opportunity to explore the larger question of whether and how international legal theory should accommodate diverse gender viewpoints, as well as the role of democratic principles in international law.

John Linarelli is Professor of Law and Head of School at Swansea University School of Law. He has published widely in the fields of international economic law, law and development, jurisprudence, and moral and political philosophy. Associate Dean Linarelli's work in jurisprudence and moral and political philosophy is in three areas: (1) the relationship of theories of global justice to international law, with an emphasis on international economic law; (2) formulating an account of legal positivism that connects to international law and to transnational systems of norms; and (3) developing a contractualist normative jurisprudence and using it to further our understanding of particular areas of the law.

Professor Linarelli will focus on the subject of international law and "reasonable pluralism." He will ask how we justify international law based on principles of right and justice. In doing so, he finds an answer that will help us move away from notions of international law based on power and interest. However, this also creates a challenge he will address: How to accommodate diversity within and among societies in a theory of international law?

John Morss is Associate Head of Law School for Research at Deakin University, Melbourne, Australia. He was educated at Sheffield and Edinburgh Universities, where he obtained a Ph.D. in psychology. He has published five books in the field of psychology, primarily on developmental psychology. He studied law from 2000 to 2003 and was appointed to the faculty of Deakin University Law School in 2004. His interests include studying international law as a law of collectives and in a Hohfeldian analysis of international law.

Professor Morss will speak on the subject: "Pluralism in International Law: Warnings, Opportunities, and Queries." He will examine the challenge for pluralism in international law posed by the doctrine of self-determination. He asks the question: How can international law properly recognize the "groupness" or community of people in affiliation, without too high a price being paid for example, by indiscriminately licensing or endorsing whatever shared dispositions or projects that may emerge from these collectives? He will seek to clarify the connections between human rights, pluralism, democracy, statehood, and international law.

Finally, Helen Stacy is Senior Fellow at the Freeman Spogli Institute for International Studies, Stanford University. She directs the Program on Human Rights at Stanford's Center on Democracy, Development and the Rule of Law. As a scholar of international and comparative law, human rights, and legal philosophy, Professor Stacy has produced works analyzing the efficacy of regional courts in promoting human rights, differences in the legal systems of neighboring countries, and the impact of political and social values on legal thinking. Her recent scholarship has focused on how international and regional human rights courts can improve human rights standards while also honoring social, cultural, and religious values.

Professor Stacy will discuss how institutions, and the rules by which those institutions operate, can better evaluate human rights complexity. She will consider how incremental gains in compliance with better human rights standards can be achieved, including through the actions of governments, but also through transnational corporations. She will also examine competing claims to rights in a pluralist world, and a theory of "cultural defense" that permits reasonable regional variations of human rights standards.

BY BRIAN LEPARD, Law Alumni Professor of Law, University of Nebraska College of Law.

** Helen Stacy did not contribute remarks to the Proceedings.

THE EFFECT OF THE PARTICIPATION OF WOMEN JUDGES ON THE LEGITIMACY OF INTERNATIONAL COURTS AND TRIBUNALS

By Nienke Grossman

Whether international law and international institutions should actively seek out "diverse viewpoints" is not just an inquiry reserved for the politically correct. Rather, its answer is tied to the success of international law and institutions. If inclusion strengthens the legitimacy of international institutions, they are weaker in its absence. When legitimacy declines, those normatively addressed by international law are less likely to respect and comply with it. (1)

I recently examined this question through the lens of the participation of female judges on international courts. (2) International court benches rarely reflect the ratio of the sexes in the general population. The International Court of Justice has had only three female permanent judges in its sixty-five year history. Two of them sit on the fifteen-member bench today. In May 2010 only fifteen percent of the permanent judges on the European Court of Justice were female. Women were appointed to WTO panels only seventeen percent of the time in 2009, although women constituted forty-three percent of the Appellate Body in mid-2010, up from nineteen percent historically. Although in mid 2009, women accounted for twenty-nine percent of the judges on the Inter-American Court of Human Rights, only one woman had ever served as an ad hoc judge. The International Criminal Court is the only court of eleven surveyed where women outnumbered men on the bench.

International courts are deciding increasing numbers of international disputes and playing a growing role in defining the content of international law. The more these courts' authority is justified or perceived as justified--the more "legitimate" they are--the more litigants and others will respect their decisions. To those interested in the success of international courts and the law they interpret and apply, legitimacy is essential. If overrepresentation of one sex harms legitimacy, it endangers the success of these institutions. Although calls for serious inquiry into the legitimacy of international courts are growing louder, surprisingly few scholars have considered the impact of homogeneous, albeit geographically diverse, benches. We have, for the most part, failed to consider whether inclusion of diverse viewpoints matters to the legitimacy of international courts.

The balance of the sexes on the bench affects both the normative and the sociological legitimacy of international courts. While a normatively legitimate institution has "the right to rule," based on presumably objective criteria, a sociologically legitimate institution is "believed to have the right to rule"--a subjective determination. (3) Normative legitimacy is concerned with whether an institution is actually legitimate and what ought to matter, while sociological legitimacy centers on what drives relevant constituencies to view an institution as possessing justified authority. (4)

Sex representation--approximately reflecting...

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