On the Democratic Legitimation of International Judicial Lawmaking

Abstract

While the introductory contribution addressed the questions and definitions of our research into judicial lawmaking, this concluding chapter discusses strategies regarding the justification of international judicial lawmaking that our introduction sought to capture and that the volume set out to present. How can one square such lawmaking with the principle of democracy? A first response could be to negate the phenomenon. If there were no such thing as judicial lawmaking, there would evidently be no need for its justification. This response, though unconvincing, merits attention all the same because, according to the traditional and still widespread view of international dispute settlement, international decisions flow from the consent of the state parties to the dispute, both from the consensual basis of the applicable law and from consent-based jurisdiction.

Armin von Bogdandy is Director at the Max Planck Institute for Comparative Public Law and International Law (MPIL), Heidelberg, Professor of Law at the Goethe University, Frankfurt, and President of the OECD Nuclear Energy Tribunal. Ingo Venzke is a Research Fellow at the University of Amsterdam, formerly Hauser Research Scholar at New York University and Research Fellow at the MPIL; his work was supported by the German Academic Exchange Service. Both authors wish to thank Rudolf Bernhardt, Jochen von Bernstorff, Sabino Cassese, Jochen Frowein, Yuval Shany, Bruno Simma, Rüdiger Wolfrum, and all participants of the present collaborative research project for their comments on earlier versions of this contribution.