International Courts and the International Jurisprudence of Statehood
By Professor Samantha Besson
Lecture by Professor Samantha Besson, University of Fribourg.
Comments by Professor Helen Keller and Professor Øyvind Østerud.
It is common in academic discussions of international courts (ICs) to address what those courts have jurisdiction to do or claim to be doing, and then to justify or criticize their actual contribution to international law. What I am interested in in this lecture, however, is the other things ICs do while deciding specific cases and making international law on the questions that State or private parties put to them.
More specifically, the topic I have chosen for this lecture is what those courts have been saying about the State and doing with it. Over the years, indeed, ICs have not only been specifying the existence, content and scope of States’ duties and responsibilities in various regimes of international law, but they have also contributed to the continuous legal definition and delineation of States themselves. This contribution of the ICs’ case-law is what I call the “international jurisprudence of statehood” to delineate it both from the rest of the international law of statehood and from the domestic jurisprudence of statehood, on the one hand, and to reveal its uniquely theoretical contribution to the international law of statehood, on the other.
In order to assess ICs’ jurisprudence of statehood, I have decided to focus on the case-law of three ICs that have contributed to distinct dimensions of the contemporary State in international law: the International Court of Justice qua generalist international law court and its making of the “internationalized State”; the European Court of Human Rights qua regional human rights court and its moulding of the “democratic State”; and the Court of Justice of the European Union qua court of a regional economic international organization and its making of the “managerial State”.
The lecture’s argument is three-pronged. In the first part of the lecture, I assess the current state of the international law of statehood and discuss what has been the role of ICs in its development. The second part of the argument delves deeper into each of the three ICs’ case-law in order to identify how the making of the State works therein and to compare the ways in which statehood is actually performed through international jurisprudence. In a third section of the lecture, I explore ways in which one could reform the international jurisprudence of statehood in order to contribute to current discussions about the state of our international institutions. The proposal is to make the international jurisprudence of statehood more comparative of the ways in which different States work, and hence to enhance its universal justification, on the one hand, and to make it more normatively critical thereof, and hence to overcome both its original dogmatic self-referentiality and the scientific objectivity it has come to rely on over time, on the other.