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Published online by Cambridge University Press: 19 March 2014
Whence does international law derive its normative force as law in a world that remains, in many respects, one where legitimate politics is practiced primarily at the national level? As with domestically focused legal theories, one standard answer is positivistic: the law's authority is based on its origin in agreed procedures of consent. This is certainly plausible with respect to treaty obligations and commitments that derive from the United Nations Charter, but it leaves customary international law vulnerable to legitimacy critiques—of which there is no shortage among international law skeptics. Even with respect to conventional international norms, such as treaty provisions, there is often a sense that such consent is democratically thinner than the public consent to domestic law, particularly fundamental domestic law, constitutional norms, and derivative principles of legitimate governance. State consent in international law, in this view, is often a very imperfect proxy for democratic consent to international legal norms. While it is obvious to international lawyers why (as a matter of positive law doctrine) state consent should make international norms prevail over domestic norms to which there is arguably deeper democratic consent, persistent critics of international law have questioned whether this should be so as a matter of legitimacy.
1 Teitel, Ruti, Humanity's Law (New York: Oxford University Press, 2011)CrossRefGoogle Scholar.
2 See the Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford: Oxford University Press, 2000)Google Scholar, reliefweb.int/sites/reliefweb.int/files/resources/6D26FF88119644CFC1256989005CD392-thekosovoreport.pdf [hereinafter referred to as the “Commission of Experts on Kosovo”].
3 See European Commission, Council of the European Union, and United Kingdom of Great Britain and Northern Ireland v. Yassin Abdullah Kadi, Joined Cases C-584/10 P, C-593/10 P and C-595/10 P [2013], ECJ report of cases not yet published (July 18, 2013) [hereinafter “Kadi CJEU II”]. This case was preceded by Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Case T-315/01 [2005], ECJ II-3649 (September 21, 2005) [hereinafter “Kadi GC I”]; Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Joined Cases C-402/05 P and C-415/05 P [2008], ECR I-6351 (September 3, 2008) [hereinafter “Kadi CJEU I”]; and Yassin Abdullah Kadi v. European Commission, Case T-85/09 [2010], ECJ II-5177 (September 30, 2010) [hereinafter “Kadi GC II”].
4 See Statute of the International Tribunal for the Former Yugoslavia, adopted by S.C. Res. 827, UN Doc. S/RES/827 (May 25, 1993), www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf [hereinafter “ICTY”] .
5 Compare Jack Goldsmith and Eric Posner, “Does Europe Believe in International Law?” Wall Street Journal, November 25, 2008, with De Búrca, Gráinne, “The European Court of Justice and the International Legal Order After Kadi,” Harvard International Law Journal 51, no. 1 (2010)Google Scholar.
6 Goldsmith and Posner, “Does Europe Believe in International Law?”
7 Ibid.
8 See Kadi CJEU I, at para. 281.
9 Ibid., para. 284.
10 Ibid., para. 285.
11 Ibid., para. 351.
12 Ibid., para. 326.
13 According to the ECJ in Kadi CJEU II, at para. 134: “The essence of effective judicial protection must be that it should enable the person concerned to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is retroactively erased from the legal order and is deemed never to have existed, that the listing of his name, or the continued listing of his name, on the list concerned was vitiated by illegality, the recognition of which may re-establish the reputation of that person or constitute for him a form of reparation for the non-material harm he has suffered.”
14 See the Security Council, “Security Council Al-Qaida Sanctions Committee Deletes Entry of Yasin Abdullah Ezzedine Qadi from its List” (UN Press Release SC/10785, October 5, 2012), www.un.org/News/Press/docs//2012/sc10785.doc.htm.
15 See the Security Council resolution establishing the International Tribunal for the Former Yugoslavia, SC Resolution 827 (1993), May 25, 1993, UN document S/RES/827 (1993).
16 Compare Michael Ignatieff's “Counting Bodies in Kosovo,” New York Times, November 21, 1999, section 4 at p. 15 and Virtual War: Kosovo and Beyond (New York: Metropolitan Books, 2000)Google Scholar with Koskenniemi, Martti, “‘The Lady Doth Protest Too Much’ Kosovo, and the Turn to Ethics in International Law,” Modern Law Review 65, no. 2 (2002)Google Scholar, Fn 29. See also Alvarez, José, “The Schizophrenias of R2P,” in Human Rights, Intervention, and the Use of Force (New York: Oxford University Press, 2008)Google Scholar.
17 See Simma, Bruno, “NATO, the UN and the Use of Force: Legal Aspects,” European Journal of International Law 10, no. 1 (1999), pp. 1–22.CrossRefGoogle Scholar
18 See, e.g., Kofi Annan, “Implications of International Response to Events in Rwanda, Kosovo Examined by Secretary-General, in Address to General Assembly” (UN Press Release GA/9595, September 20, 1999).
19 See Commission of Experts on Kosovo (note 1, above)
20 See UN Secretary-General, A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Changes, at 8, UN Doc. A/59/565 (December 2, 2004), www.refworld.org/docid/47fdfb22d.html.
21 See Koskenniemi, “‘The Lady Doth Protest Too Much’,” pp. 159–75.
22 Ibid., p. 162.
23 See Simma, “NATO, the UN and the Use of Force,” p. 6.
24 Ibid., p. 12.
25 Ibid., p. 22.
26 For example, it has been argued that the intervention could have been justified under Article 2(4) of the UN Charter. See Robert Howse and Ruti Teitel, “Why Attack Syria?,” Project Syndicate, September 4, 2013.
27 See Bickel, Alexander M., The Least Dangerous Branch (New Haven, Conn.: Yale University Press 1986)Google Scholar. First published in 1962.
