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Scholars of International Politics have recently come to grip with theglobal resurgence of religion. Since the inception of the field of International Politics,the secularisation thesis had been taken for granted and religion dismissedas unimportant. But in line with the current transformation affecting societiesworldwide as well as with the re-consideration of the secularisation thesis bySociologists, new resources must be developed within IR to better understandcurrent events. While theories and concepts have been developed within Sociologyand the Political Sciences, no such tools are available in International Politics.Thus, this article provides a tentative theory of secularisation drawing onresources endogenous to the field. Drawing on recent advances in the broadlyConstructivist tradition, this article re-interprets secularisation as a protracted internationalcrisis of legitimacy.

The objective of this article is to present an overview of the state of the art concerning the legitimacy of Supreme Courts in the context of globalisation. In recent years, there has been much discussion about the observed increase in both the references to foreign decisions in matters of domestic adjudication, as well as the alleged and precipitate rise of 'transjudicial dialogue', or formal and informal communication between the domestic courts of various national jurisdictions. A central concern is whether Supreme Courts possess the necessary authority, and thus the legitimacy, to adopt a more 'internationalist' disposition. This article will demonstrate how there are various coexisting discourses of legitimacy, each with their own particular features. These various discourses are not always compatible or easily commensurable. It will argue, moreover, that the basic dilemma regarding judicial legitimacy in a globalised world is a species of a more general problem of globalisation studies, namely how to reconcile a conceptual vernacular which is permeated by domestic, state-centric notions with a political reality which is increasingly non-national in its outlook.

The objective of this article is to present an overview of the state of the art concerning the legitimacy of Supreme Courts in the context of globalisation. In recent years, there has been much discussion about the observed increase in both the references to foreign decisions in matters of domestic adjudication, as well as the alleged and precipitate rise of 'transjudicial dialogue', or formal and informal communication between the domestic courts of various national jurisdictions. A central concern is whether Supreme Courts possess the necessary authority, and thus the legitimacy, to adopt a more 'internationalist' disposition. This article will demonstrate how there are various coexisting discourses of legitimacy, each with their own particular features. These various discourses are not always compatible or easily commensurable. It will argue, moreover, that the basic dilemma regarding judicial legitimacy in a globalised world is a species of a more general problem of globalisation studies, namely how to reconcile a conceptual vernacular which is permeated by domestic, state-centric notions with a political reality which is increasingly non-national in its outlook.

In this article I discuss output legitimacy as a category of normative analysis of international organizations (IOs). I first take issue with the widespread view that output legitimacy is just a synonym for organizational effectiveness or efficiency, and unrelated to democracy. Against this view, I argue that output legitimacy has an important democratic dimension. The touchstone of 'democratic output legitimacy' is the extent to which systems of governance generate results that cater to the public interest. This notion of democratic output legitimacy is then applied to IOs. The ability of IOs to safeguard a transnational public interest hinges on i) their ability to keep powerful (state and non-state) actors in check; ii) the epistemic quality of their decision-making procedures; iii) their respect for human and civil rights. Attaining these qualities may require shielding IOs from the input dimension of the international political process. I warn that some strategies to improve the democratic input legitimacy of IOs may enhance the power of strong nations over weaker ones, and of well-organized industry lobbies over other interests. ; Der vorliegende Beitrag diskutiert Output-Legitimität als Kategorie normativer Analyse internationaler Organisationen (IOs). Dabei geht er zunächst auf eine weit verbreitete Ansicht ein, der zufolge Output-Legitimität lediglich ein Synonym für organisationale Effektivität oder Effizienz ist, ohne dabei einen Bezug zur Demokratie herzustellen. Im Gegensatz dazu wird hier die Auffassung vertreten, dass Output-Legitimität über eine bedeutende demokratische Dimension verfügt. Als Prüfstein demokratischer Output-Legitimität wird angelegt, inwiefern Governance-Systeme Ergebnisse generieren, die sich am öffentlichen Interesse orientieren. Anschließend wird dieses Verständnis demokratischer Output-Legitimität auf IOs angewendet. Die Fähigkeit von IOs, ein transnationales öffentliches Interesse abzusichern ist abhängig von i) ihrer Fähigkeit, einflussreiche (staatliche und nicht-staatliche) Akteure unter Kontrolle zu halten; ii) der epistemischen Qualität ihrer Entscheidungsverfahren; iii) der Achtung der Menschen- und Bürgerrechte durch die IO. Um dies zu erreichen, kann es erforderlich sein, IOs von der Input-Dimension des internationalen politischen Prozesses abzuschirmen. Der Beitrag warnt damit zugleich davor, dass einige Strategien zur Verbesserung der demokratischen Input-Legitimität von IOs die Macht stärkerer über schwächere Staaten oder gut organisierter Industrielobbys über andere Interessen vergrößern könnten.

International taxation has taken a central role in the ongoing political and economic crisis. There is a growing consensus in society that there is a need to change the current rules and norms of international taxation, since the changes in society are not properly reflected in the body of law called 'international tax law'. The starting point of this study is therefore that international tax law is struggling with legitimacy problems in a society that is changing very quickly. The objective of this study is to improve the legitimacy of international tax law. In this respect, it focuses on two separate 'tracks': the legal framework of international tax law and the contribution of social-scientific knowledge to the legitimacy of international tax law. The first part of the study concerns a research of the development of international tax law in the period following the Second World War. This includes an analysis of the changing characteristics of international tax law and the development of the dominant norms of international taxation. The second part of the study considers the possibilities to improve the legitimacy of international tax law. In this respect, the study considers both the work of the German philosopher and sociologist Jürgen Habermas, and the possibilities and limitations of the contribution of social-scientific knowledge to the contribution of the legitimacy of international tax law. The latter element is, for example, relevant in order to evaluate the domination of capital import neutrality and capital export neutrality as 'sources' of the legitimacy of international tax law in the history of this field of law. Finally, the third part of the study does recommendations to improve the legitimacy of international tax law on the basis of the findings of the first parts of the study. This includes, amongst others, a different understanding of international tax law that is called 'deliberative international tax law'.

One of the putative benefits of incorporation in Delaware is the expertise and knowledge of the Delaware courts. Professor Jonathan Macey says that Delaware "offers current and prospective charterers . . . a judiciary with particularized experience and expertise in corporate law." Professor Faith Stevelman cites the "expertise" of Delaware's judges as "fostering the state's leading reputation in corporate law," which "safeguard[s] the financial returns which flow to Delaware from its chartering business." Professor Michael Klausner argues that Delaware's dominance will likely be permanent in part because of the corporate expertise of Delaware's judiciary. In fact, "[s]ome see the quality of the Delaware judiciary as the prime reason why corporations incorporate in Delaware." The assertion of Delaware judicial superiority is so much a majority view that it in effect constitutes conventional wisdom within the corporate law academy. Commentators have lauded not only the expertise of the Delaware judiciary but also its insulation from politics. Professors Marcel Kahan and Edward Rock have compared Delaware courts favorably to federal courts: "Indeed, since Delaware's judiciary is less politicized and has greater claims to expertise in corporate law than the federal judiciary, its rulings may enjoy greater legitimacy than would corporate rulings of federal judges." This essay offers a contrary perspective on this assertion of Delaware courts' expertise. While they may or may not be experts, I believe that their corporate law jurisprudence, especially over the last decade, has drifted toward incoherence. This might be for any of several reasons. But whatever the cause, the Delaware courts are putting themselves at risk of descending into legal and political illegitimacy. This essay will seek to explain why. Part I of this essay will explain the importance of explanation in building and maintaining judicial legitimacy in the face of the so-called "counter-majoritarian difficulty" inherent in judicial decision-making. Part II offers examples of courts that sacrificed their own legitimacy because of incoherent, poorly reasoned judgments that strike readers as being based more on politics than law. Part III explains the implications of these insights for Delaware courts, namely that the Delaware judiciary needs to do a better job of justifying its decisions in traditional legal terms. Otherwise, the Delaware judiciary will increasingly be seen as merely instituting its political views by way of judicial rulings.

The theoretical debate on pluralism in law has only indirectly overlapped with the debate on global justice. It has often seemed that the former appears as a merely institutional concern of experts in law, whereas the second as a moral preoccupation for philosophers, economists and activists. In my view the two issues are closely related. They both turn on a view of the legitimacy of international institutions. It is wrong for philosophers to ignore institutions of law and it is equally wrong for lawyers to ignore global justice. In order to see this we will need to set aside the artificial distinction that is often drawn between legal and political obligation. This is the epicentre of the 'positivist' theory of law, which is currently popular among legal philosophers. Legal positivism is an attractive theory because it simplifies law and legal reasoning. It is nevertheless misleading because it fails to capture both our basic common sense assumptions about law and the content of technical legal doctrine. Under the legal positivist dogma legal obligations and rights become inscrutable. They come to mysteriously occupy a space occupying both the world of fact and the world of value. Legal positivism is incoherent because law is another area of practical reason, a series of arguments that run parallel to morality and ethics. In my own earlier work I offered a theory of law as practical reason, which is constructivist in method and egalitarian in inspiration, based on the work of Kant and Rawls. I believe that the same theory can illuminate international institutions. In this essay I argue that once we understand the law as a body of rules, practices and institutions with moral standing, the question of pluralism and the question of global justice are seen as two sides of the same coin. Lawyers and philosophers have a common task, to understand and interpret the moral nature of the division of the world into states.

Summary The legitimacy of the Inter-American Court of Human Rights has been called into question both by doctrine and by some states under its jurisdiction. As part of the wider debate on the legitimacy of courts and international law, responses are sought to these criticisms from this legal system, in so far as the Court is a party to it, and to the foundations of the legal binding nature of international law, taking into account both the best philosophical proposals and the reality of current international law. It is concluded that the work of the IDH Court is a feature of contemporary international human rights law which not only enjoys legitimacy in itself, but is a source of legitimacy for international law as a whole. ; Resumen La legitimidad de la Corte Interamericana de Derechos Humanos ha sido cuestionada tanto por la doctrina como por algunos Estados sometidos a su jurisdicción. Dentro del debate más amplio sobre la legitimidad de los tribunales y el Derecho internacional, se buscan respuestas a dichas críticas desde este ordenamiento jurídico, en la medida en que la Corte es un tribunal parte del mismo, y en los fundamentos de la obligatoriedad jurídica del Derecho internacional, atendiendo tanto a las mejores propuestas filosóficas como a la realidad del Derecho internacional actual. Se concluye que la labor de la Corte IDH es característica del Derecho internacional contemporáneo de los derechos humanos que no solo goza de legitimidad en sí mismo, sino que es fuente de legitimidad del Derecho internacional en su conjunto.

This article discusses the problems with enforcement of decisions of international courts. The issue of compliance by states with decisions of international courts is critical for the whole system of international law. If states cannot rely on law and have it clarified and enforced through courts' judgements, international law would become useless, disregarded, avoided and replaced by economic or military pressure or force. There exist a variety of different enforcement mechanisms in courts with global (International Court of Justice, World Trade Organization Dispute Settlement Body) and regional (European Court of Justice, Economic Court of the Commonwealth of Independent States, Court of Eurasian Economic Union) reach. Basically every international court has got some type of formal enforcement mechanism, even if it is only political in nature. But none can be called very effective and in particular – efficient. Some of them are equipped with economic sanctions (suspension of concessions, penalty payment, lump sum). They are not used often though. One should note that records of compliance with decision of courts which are able to impose sanctions are also far from being perfect. In particular, it seems that wealthy states can simply afford bearing economic sanctions without execution of the court decision. They therefore "buy themselves out" of their legal obligations. There is no doubt that for the sake of international legal certainty and stability it is desirable that international community pays more attention to improving the mechanisms for enforcement of decisions of international courts.

This article discusses the problems with enforcement of decisions of international courts. The issue of compliance by states with decisions of international courts is critical for the whole system of international law. If states cannot rely on law and have it clarified and enforced through courts' judgements, international law would become useless, disregarded, avoided and replaced by economic or military pressure or force. There exist a variety of different enforcement mechanisms in courts with global (International Court of Justice, World Trade Organi-zation Dispute Settlement Body) and regional (European Court of Justice, Economic Court of the Commonwealth of Independ-ent States, Court of Eurasian Economic Union) reach. Basi-cally every international court has got some type of formal enforcement mechanism, even if it is only political in nature. But none can be called very effective and in particular – effi-cient. Some of them are equipped with economic sanctions (suspension of concessions, penalty payment, lump sum). They are not used often though. One should note that records of compliance with decision of courts which are able to impose sanctions are also far from being perfect. In particular, it seems that wealthy states can simply afford bearing economic sanc-tions without execution of the court decision. They therefore "buy themselves out" of their legal obligations. There is no doubt that for the sake of international legal certainty and stability it is desirable that international community pays more attention to improving the mechanisms for enforcement of decisions of international courts.

The issue of the defining elements of a truly fair justice system has become a constant and consistent concern of international and/or regional political and legal organisations. Given the scale of the phenomenon of establishing and resorting to international courts and tribunals, reflecting, among others, the preference and availability of international actors for settling their disputes by independent and impartial decision-makers, the principles and values of the international judiciary have been subjected to discussions in an increasingly elaborate manner. Among these, judicial independence occupies a special position, being tightly connected to the issue of the legitimacy of such institutions, as an essential factor in ensuring voluntary compliance to the internationally adopted decisions. In this context, the present paper addresses the independence of the judiciary in international courts, both in terms of the fundamental theoretical contributions and from a practical perspective, by following the institutional provisions and guarantees for ensuring an independent and impartial judiciary in the statutes of two of the most relevant international courts, namely the International Court of Justice and the International Criminal Court.

This article offers the first systematic and comparative analysis of the effects of elite communication on citizen perceptions of the legitimacy of international organizations (IOs). Departing from cueing theory, it develops novel hypotheses about the effects of elite communication under the specific conditions of global governance. It tests these hypotheses by conducting a population-based survey experiment among almost 10,000 residents of three countries in relation to five IOs. The evidence suggests four principal findings. First, communication by national governments and civil society organizations has stronger effects on legitimacy perceptions than communication by IOs themselves. Secondly, elite communication affects legitimacy perceptions irrespective of whether it invokes IOs' procedures or performance as grounds for criticism or endorsement. Thirdly, negative messages are more effective than positive messages in shaping citizens' legitimacy perceptions. Fourthly, comparing across IOs indicates that elite communication is more often effective in relation to the IMF, NAFTA and WTO, than the EU and UN. ; Elite Communication and the Social Legitimacy of International Organizations, Swedish Research Council (2015-00948) ; Leggov, Riksbankens Jubileumsfond (M15-0048:1)

The question of adjudication in international financial law has rarely been analysedcomprehensively in the legal literature. This can probably be explained with the factthat, unlike in other areas of international economic law, there is no internationalfinancial court specifically designed to adjudicate international disputes between financial regulators, or between governments and financial institutions or investors.Moreover, the informality of regulatory cooperation through Transnational RegulatoryNetworks (TRNs), the use of soft laws to regulate international financial relations, andthe presence of prudential carve-outs in international treaties was supposed to keepfinancial supervisory and regulatory authorities free from international scrutiny and tolimit the judicial review of regulatory measures to a purely domestic exercise. Yet, financial measures are increasingly challenged in international investment tribunals, human rights courts, and regional courts. From 1995 to 2016, there have been more than 100 known international disputes on financial services, of which roughly two thirds involved a supervisory measure such as the resolution or bankruptcy of an insolvent bank or the imposition of supervisory fines. The remaining claims mostly included violation of sovereign debt contracts, or emergency legislation affecting financial services. Investment arbitrations, in particular, are considerably on the rise. The increased number of regulatory disputes represents fundamental implications for the financial regulatory community in terms of domestic governance, regulatory cooperation, and global financial stability.This essay empirically investigates and maps for the first time the patterns of international adjudication in financial law, and comments on what the rise of international litigation means for the global financial architecture.

The archives produced by international courts have received little empirical, theoretical or methodological attention within international criminal justice (ICJ) or international relations (IR) studies. Yet, as this book argues, these archives both contain a significant record of past violence, and also help to constitute the international community as a particular reality. As such, this book first offers an interdisciplinary reading of archives, integrating new insights from IR, archival science and post-colonial anthropology to establish the link between archives and community formation. It then focuses on the International Criminal Tribunal for Rwanda's archive, to offer a critical reading of how knowledge is produced in international courts, provides an account of the type of international community that is imagined within these archives, and establishes the importance of the materiality of archives for understanding how knowledge is produced and contested within the international domain.

Verfassungsgerichtliche Entscheidungen haben oft keine demokratische Legitimität, da die Richter nicht gewählt, sondern ernannt werden und ihre Entscheidungen oft politische und kontroverse Themen beinhalten. Dies wird von einigen als Gegengewicht zur Mehrheit im Parlament zum Schutz von Minderheitsrechten und von anderen gegen die Demokratie selbst gesehen. Diese Arbeit konzentriert sich auf einen Zwischenansatz, der die Versöhnung beider Seiten verspricht. Dieser Zwischenweg wird durch die "notwithstanding clause" der kanadischen Verfassung vorgestellt. Kanada verfügt über eine verfassungsrechtlich verankerte Menschenrechtscharta und einen Obersten Gerichtshof, der verfassungswidrige Gesetzgebungsakte für nichtig erklären kann. Durch die "notwithstanding clause" kann das Parlament ungeachtet einiger Bestimmungen der Charta erklären, dass ein Gesetz oder eine Bestimmung davon wirksam ist. Aufgrund dieser Klausel behält das Parlament das letzte Wort. Unglücklicherweise ist die Klausel wegen ihre oft missverstandenen Bedeutung als "Überschreiben von Charta-Rechte" heutzutage meistens inaktiv. Daher befasst sich diese Arbeit damit, wie diese Klausel unter ihrer korrekten Bedeutung verfassungsgerichtliche Entscheidungen demokratische Legitimation geben kann. Der Oberste Gerichtshof Kanadas kann nicht nur wegen des Vorhandenseins der Klausel, sondern aufgrund des interinstitutionellen Dialogs zwischen den verschiedenen Staatsmächten demokratisch legitimierte Entscheidungen erlassen. Diese Dialogmethode entwickelte sich aufgrund der Nichtanwendung der "notwitstanding clause" und ermöglicht es allen Staatsmächten, eine angemessene Interpretation der Rechte gleichberechtigt vorzunehmen. ; Constitutional/Supreme Court decisions often lack democratic legitimacy as the judges are not elected but appointed and their decisions often include political and controversial topics. This is seen by some as countering the majoritarian rule of Parliament to protect human rights and by others to undermine democracy itself. This paper is focusing on an intermediate approach that promises to reconcile both sides. This intermediate way is exemplified by the notwithstanding clause of the Canadian Constitution. Canada has a constitutional bill of rights, the Canadian Charter of Rights and Freedoms, and a Supreme Court embedded with the power to declare legislative acts as null and void if they violate the Constitution or the rights enshrined therein. Nevertheless the notwithstanding clause enables Parliament to declare an act or a provision thereof to operate notwithstanding certain Charter provisions. Due to this provision Parliament retains the final word. Unfortunately, the notwithstanding clause is mostly dormant today due to its poor wording and often misunderstood meaning of overriding Charter rights. For this reason this paper addresses how, under its correct meaning, the notwithstanding clause might be able to cure the democratic illegitimacy of judicial review. It is concluded that the Canadian Supreme Court can issue democratically legitimate decisions not because of the mere existence of the notwithstanding clause, but due to the inter-institutional dialogue happening between the different state powers. This dialogue method evolved because of to the dormancy of the notwithstanding clause and allows all state powers to engage in reasonable interpretation of rights without giving the sole responsibility of it to the courts. ; vorgelegt von Melanie Maurer ; Karl-Franzens-Universität Graz, Diplomarbeit, 2019 ; (VLID)3674467