WPS 2016-04: Community Interests in International Adjudication

Eyal Benvenisti

This chapter develops the following propositions: All courts seek to be consistent to ensure equal treatment and a reputation for impartiality. Therefore, they have to look beyond the specific case and the specific parties. Therefore they have to take broader interests into account and anticipate the ramifications of each and every judgment for future litigants. To ensure consistency and deflect accusations of double standards, courts also have to develop coherent “rules of recognition.” These factors lead all independent courts to act necessarily in an “other-regarding” manner when adjudicating, and turn every judgment into a piece in the puzzle of law. When we focus on the latter, several additional factors highlight their role as communal legislators. International courts have an inherent interest in coordinating with other courts. They also have an interest in positive reception by national courts. Therefore they look beyond their specific area (trade, human rights, etc.) and try to accommodate the concerns of other legal systems and diverse stakeholders. In doing so, these courts participate in a collective effort to incrementally weave a web of norms called international law. The systemic character of judge-made international law permits regional and international courts to curb executive power and resolve collective action problems for states. Hence international courts are inherently attuned to take community interests into account and promote community interests where states fail.

WPS 04-16 (pdf)