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This Article on Richard Fallon's Law and Legitimacy in the Supreme Court focuses on public acceptance of the Supreme Court's authority, what Fallon calls sociological legitimacy. After setting out Fallon's accounts of legitimacy and constitutional argumentation, the Article looks at public opinion data and political science scholarship on the extent to which the Court's decisions affect public acceptance of the Court. It then turns to the normative question of whether, even if the Court's decisions may undermine its sociological legitimacy, that impact is a legally legitimate factor for the Court to consider. The Article argues that strategic consideration of the Court's public legitimacy can be an appropriate factor in the Justices' decision making, but such consideration may end up actually harming the Court's reputation if undertaken openly and candidly as Fallon would seem to require.

International humanitarian law applicable in non-international armed conflicts has long been characterized by the absence of universal competence to suppress serious violations of its provisions. This failure has been due to the reluctance of states – which are naturally prone to consider any limitation of their exclusive competence in this field as a threat to their sovereignty – to criminalize such acts under international law.The first attempt at remedying such a situation was seen in the Draft Statute of an International Criminal Court (ICC), which was prepared by the International Law Commission (ILC) in 1994, and inspired by the draft articles of the Code of Crimes against the Peace and International Security of Mankind, provisionally adopted by the ILC in 1991 at first reading. Under the Draft Statute of the ICC, serious violations of the laws and customs applicable in armed conflicts would be under the jurisdiction of the Court. The ILC had in mind exceptionally serious war crimes, such as those described in the pertinent article of the draft code referred to by the Commission, constituting an extremely grave violation of the principles and laws of international law applicable in armed conflicts. In the commentary on this article, the ILC took care to specify that the expression 'armed conflict' covered the non-international armed conflicts that are the focus of common Article 3 of the Geneva Conventions of 12 August 1949, as well as international armed conflicts.This first step was of very limited scope. In fact, according to the ILC, in order to be criminalized, the laws and customs of war had to find their origin in general customary international law.

This article introduces the concept of indirect speech and shows what it can contribute to understanding 'legitimacy talk' regarding international institutions. Indirect speech occurs when one kind of illocutionary act is used to communicate another. Examples include euphemism, some forms of politeness and when a request is expressed as a question ('Can you pass the salt?'). Transporting concepts from pragmatics and sociolinguistics, this article argues that legitimacy talk often serves this function in international politics, operating by expressing specific requests in the form of more generalized legitimacy claims. Understanding this double role of legitimacy talk sheds light on otherwise puzzling empirical phenomena, such as why states frame their demands in terms of legitimacy when they are transparently self-serving, why states with different interests can nonetheless express their demands in the same terms, and why they persist in doing so long after there is any realistic hope of being 'persuasive'. An analysis of the debate on Security Council reform illustrates the benefits of this approach for the study of international relations.

What types of countries have ratified the Rome Statute establishing the International Criminal Court? Because the court relies on state cooperation, it is a good example of a regime facing a "participation problem." In order to be effective, the regime requires active members, but states that fear regime effectiveness will therefore find it potentially costly to join. We analyze the extent to which this problem plagues the ICC. We find that countries for whom compliance is likely to be easiest-democracies with little internal violence-are the most likely countries to join the ICC. On the other hand, countries with the most to fear from ICC prosecution, nondemocracies with weak legal systems and a history of domestic political violence, tend to avoid ratification. We contrast our findings with those of a recent article by Simmons and Danner (2010), arguing that ratification patterns show evidence of credible commitments. Our analysis across a breadth of evidence, both descriptive and multivariate, suggests caution toward arguments about the impact of the ICC on global practices and provides support for the notion that states strategically select themselves into supranational judicial agreements. Adapted from the source document.