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International Courts: Challenges New and Old – A Deconstruction on the Work of International Courts

Salmimies, Johannes

Opinnäytetyöt 14.4.2022, Gradut ja muut tutkielmat


In this thesis, the aim is to critically appraise some characteristics of international courts that seem to hinder their impact and be problematic to their legitimacy. It presupposes that these features are hidden by the conventional legend-building narratives on international courts. To deconstruct this framework in which they operate, the thesis focuses on three features it argues are connected: the type of justice international courts provide; the democratic legitimacy vacuum in which they operate and the effect of fragmentation and the proliferation of international courts. The inspirations for the thesis notably stem from the remarks that other institutions have raised in popularity in tackling issues of international justice, and from the observation that the issues faced by international courts have, to some extent, remained similar for over a century. The thesis also accepts as a starting point that legal theory on the international field lags behind reality and has struggled to provide a comprehensive theoretical framework under which international courts operate.

In order to locate the questions to be asked and to provide an explanation of their need and perceived benefits, the thesis first lays out the historical context of the emergence of international courts on the international stage. This historical context is argued to be closely connected to the legend-building narratives on international courts. Next, in chapter three, inspired by the notion of micro and macro justice, the thesis then makes observations on the kind of justice international courts actually can and should aim for and the results they can achieve. It argues that international courts are limited in the type of justice they can provide, and thus unable to alone reach the goals they were created to fulfil. In chapter four, the thesis then notes that the democratic legitimacy of international courts has been considered questionable from their very appearance, an issue argued to be of relevance still today, not least to the glaring lack of a global demos. It is thus observed that due to the reality of the international field, international courts have had to take the role of a norm-creator. The thesis argues that none of the traditional counter-arguments to this problematic feature can be held satisfactory. Further, it is asserted that the absence of a legislative causes problems to international courts both as an interpreter and as a norm-creator.

Finally, the thesis moves on to a more recent development in chapter five, namely legal fragmentation and the proliferation of international courts. While these make the international legal field more complex, create overlapping systems and thus potential power struggles, it is argued that this phenomenon also further affects the issue of democratic legitimacy and the justice provided by international courts. This happens notably because they lessen the control of states on the newly established norms and institutions. Further, while fragmentation might aid international courts in focusing on micro justice, it complicates their norm-creating process.

As a conclusion, the thesis summarises the problems it claims are caused by the framework in which international courts operate and how they differ from the legend-building narrative. Additionally, it restates a few possible modest paths of development to tackle each of the noted problems, although it is argued that to truly solve the encountered issues, the establishment of an international legislative would be required. Due to the research question and the multiplicity of issues treated, the methods used in the thesis are a combination of critical analysis with theoretical and historical approaches, with an end-goal to provide a critical legal study on the impact of international courts.

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